Case: Oriental Insurance Co. Ltd Vs. Sorumal Gogoi

death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof. Section 3 of the 1923 Act would be attracted only when the conditions precedent therefor are fulfilled and not otherwise.18. The view which we have taken find support from a judgment of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak [(1969) 2 SCC 607] , holding: “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’.” 19. In Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC 513] also this Court held: “6. 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 as a natural result 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.7. The expression ‘accident’ means an untoward mishap which is not expected or designed. ‘Injury’ means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly as follows:“I think that the context shows that in using the word ‘designed’ Lord Macnaghten was referring to designed by the sufferer’.” 20. Furthermore, the rights of the parties were required to be determined as on the date of the incident, namely, 9.10.1996. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim, save and except in very exceptional cases.21. In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999) 8 SCC 254] , this Court held: “Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim.” {[See also Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10 SCC 567] .22. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. The sine qua non for invoking the proviso appended to Section 147 is that the employee must be engaged in driving the vehicle. Death or bodily injury must occur arising out of or in the course of his employment. The 1923 Act or the 1988 Act, therefore, would be applicable only if the conditions precedent laid down thereunder are satisfied.17. The employer lodged a first information report against Bipul Gogoi. A charge sheet was also filed. There is nothing on record to show that the death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof. Section 3 of the 1923 Act would be attracted only when the conditions precedent therefor are fulfilled and not otherwise.18. The view which we have taken find support from a judgment of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak [(1969) 2 SCC 607] ,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 themean ‘in the course of the work which the workman is employed to do and which is incidental toThe words ‘arising out ofare 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 haveIn Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC 513]  also this CourtUnder 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 as a natural result 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.7. The expressionmeans an untoward mishap which is not expected or designed.means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expressionis used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly asthink that the context shows that in using the wordFurthermore, the rights of the parties were required to be determined as on the date of the incident, namely, 9.10.1996. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim, save and except in very exceptional cases.21. In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999) 8 SCC 254] , this Courtthe relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of thealso Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10 SCC 567] .22. For the reasons aforementioned, the impugned judgment cannot be sustained.is set aside accordingly.