Bombay High Court
Salamabegum, W/O. Shaikh Abdulla And ... vs Dt. Branch Manager, Maharashtra State ... on 1 September, 1988
Equivalent citations: 1988(4)BOMCR520, [1990(60)FLR371], (1990)ILLJ112BOM, 1989MHLJ785
JUDGMENT
1. This is an appeal by the wife and minor children of a jeep driver SK. Abdulla, who was employed by the Managing Director, Maharashtra State Land Development Bank Ltd., Bombay - the respondent No. 2 and was at the relevant time working with the respondent No. 1, the District Branch Manager, Land Development Bank Ltd., Beed. While the driver had taken the Officers of the Bank at Beed to the village Renapur in the jeep of the Bank on 21st March, 1980 in connection with the recovery proceedings conducted by the Bank and while he had rested the jeep in the Rest House and had gone to the market at Renapur, he was assaulted by some unknown persons in the crowd in the market, and was found dead. He was taken to the Police Station. The appeal is for compensation under Section 30 of the Workmen's Compensation Act, 1923, on account of the death of the jeep driver Sk. Abdulla, on the ground that the death was caused of Sk. Abduall, a workman, by accident arising out of and in the course of his employment on 21st March, 1980.
2. The appellants have served the respondents with a notice on 9th February 1981 for compensation of Rs. 24,000/-, but in vain. The respondent No. 2 did not participate in the proceedings. The respondent No. 1 - District Branch Manager filed his written statement and opposed the claim.
3. Both the sides adduced the evidence and the sum of the total evidence, Marshalled by the learned Civil Judge, Senior Division, Beed is not in dispute. The pleas raised by the respondents found favour with the learned Judge - Commissioner. It was held that the death of Sk. Abdulla in the market place was not committed due to a tense situation created in the village by recovery staff of the Bank on the ground that there was no such plea taken by the appellants. Even assuming that the death of Sk. Abdulla was the result of such a tense situation, the learned Judge observed that there was no reason to commit the assault on the jeep driver. The target should have been the Officers of the Bank rather than a poor jeep driver. The learned Judge relying on (1960-I-LLJ-439) Mohanlal Prabhuram v. Fine Knitting Mills Co. Ltd., Ahmedabad, came to the conclusion that the facts of the case were different from the facts of the instant case and it cannot. therefore, be held that the death was incidental to the employment of Sk. Abdulla. It was observed by the Judge that the record in the instant case regarding the cause of assault vis-a-vis the motive is silent, and that the record does not show that as to how the quarrel had started in the market and by whom.
4. The position of the facts in the present case, therefore, is that a jeep driver in the employment of the respondents Nos. 1 and 2 while he had gone on duty to village Renapur and had taken the Bank Officers to that village on 21st March 1980, which was a weekly bazar day of village Renapur, had rested his jeep at the Rest House with permission of the officers and had possibly wandered in the market, and was murdered by some persons in the mob and his dead body was handed over to the Bank Officers by the Police Station on that day. The alleged assailants of Sk. Abdulla, it appears were later on prosecuted and were acquitted. No record of the said prosecution nor even the judgment of the case has been placed on record in spite of an opportunity given to the respondents to produce at least the judgment.
5. The sole question for consideration in this appeal is whether the death of Sk. Abdulla arose out of and during the course of employment with the respondent. An accident means a mishap or untoward even not expected or designed by a workman. It is pertinent to observe in this connection that the mishap of the accident occurred in a weekly bazar where the workman had gone after resting his jeep in the Rest House, and where he had to lose his life at the hands of an unruly mob. The evidence recorded in this case does not show as to who started the quarrel and what was the reason of the assault on Sk. Abdulla. The respondents did not show by any evidence as to how the quarrel started and whether the assault was invited by the workman. The evidence of Pandharinath s/o Tulshiram Shirsat, DWI (Ex. 38) and Sudam Vishwanath Kolekar, DW 2 (Ex. 39) does not throw any light on this fact. They stated that while they were going to the Rest House after completing their work they learnt from the villagers that Sk. Abdulla and the assailants were taken to the Police Station and they saw that a huge mob had gathered. They are ignorant of the circumstances in which the quarrel had ensued. The respondents also examined two witnesses i.e. Hanumant s/o Genba Akhangire DW 3 (Ex. 47) and Gachkumar s/o Dattatraya Apsingekar DW 4 (Ex. 48), who showed that the incident had taken place in the weekly bazar at Renapur. Hanumant is a banana seller, who in his evidence stated that some wordy quarrel had taken place between some assailants and Sk. Abdulla, which resulted in the assault on him. What the wordy quarrel was, he could not tell. The other witness is a Proprietor of a Cycle Mart. He also could not say as to how the quarrel had started. The witness at Ex. 38 examined by appellants deposed about the incident in the market, but without any further details.
6. There is no doubt, therefore, that the accident had taken place resulting in the death of Sk. Abdulla in the bazar at Renapur, when he had gone there in the jeep with the Officers of the Bank on official duty. There is no gainsaying of the fact that the accident had taken place during the course of employment.
7. The only question that calls for consideration is whether it can be said that the accident arose out of the employment or whether there was any connection, casual or otherwise, between the death and the employment of the workman. In this respect, the appellants contention was that there was incidental connection by the very fact that the deceased Sk. Abdulla was on duty of the Bank and but for his performing the duty of taking the Bank Officers in the jeep at Renapur on that day, the accident could not have taken place. In other words, had he not been on duty of the Bank on that day and had he not taken the jeep anywhere, he would not have met with any accident, much less a fatal one like his death. This contention has much force. It cannot be lightly brushed aside.
8. The learned Commissioner has obviously erred in not holding that there was a casual connection between the accident in question and the employment of Sk. Abdulla. The assault may have been perhaps due to tense situation in the village on account of recovery proceedings. DW 1, Mr. P. T. Shirsat, the District Recovery Officer had admitted in his cross-examination that he was apprehending the assault on him also. There was, no doubt, a casual connection between the accident and the employment. As a matter of fact, the expression "accident arising out of and in the course of employment" rather denotes a point of time than a factual connection with the employment and the accident.
9. A few cases on this point need be perused. In (1957-I-LLJ-340) Public Works Department through Chief Engineer, P.W.D., Bhopal v. Smt. Kausa, a workman/gang-jamadar from P.W.D. had started from his place of work for collecting salaries of labourers from his office and was while on his way murdered by some unknown persons. The question arose as to whether the death of Gokul, the workman can be said to be the result of accident "arising out of and in the course of his employment". Relying on (1959-II-LLJ-65), it was observed that the word 'accident' in Section 3(1) of the Workmen's Compensation Act, has been used in the popular and ordinary sense; and all that it means is 'mishap' or 'untoward event not expected or designed. It was further observed that if the injury or death from the point of view of the workman, who dies or suffers the injury, is unexpected or without design, on his part, then the death or injury would be by accident although it was brought about by other causes. The death of Gokul in the aforesaid case was certainly neither expected or designed by him. It would, therefore, amount to an 'accident' within the meaning of section 3(1) of the Workmen's Compensation Act. The facts in the instant case are also similar as in the above mentioned case. In this case also a workman died while he was on duty at the hands of some other persons. The cause of assault and death is not known and it does not show that the workman Sk. Abdulla had expected or designed or invited the assault on him. The death of Sk. Abdulla was, therefore, certainly due to accident during the course of his employment. Whether the death arose out of his employment, is a question, which can be answered by a reference to the decision of Division Bench of this Court, reported in (1952-I-LLJ-1). This Court has held that, the words, "arising out of his employment" are wide enough so as to cover a case, where there may not necessarily be direct connection between an injury caused as a result of an accident and the employment of an workman. There was a bomb explosion, as a result of which workman received injuries and died. It was not known as to who had placed the bomb. The workman was certainly not responsible. The bomb was exploded in the workshop. It was held that there was a circumstance attending to his employment because at that time and place at which he was employed, an explosion occurred. As such, it was an accident arising out of and during the course of his employment. Speaking for the Division Bench of Dixit and Bavdekar, JJ., Dixit, J. observed that (p.2) :
"The expression "arising out of his employment" suggests both the time as well as the place of employment. The expression "out of" conveys the idea that there must be some sort of connection between the employment and injury caused to a workman as a result of the accident. That is the literal and strict construction of the section. But, the words "arising out of his employment" are wide enough so as to cover a case, where there may not necessarily be a direct connection between the injury caused as a result of an accident and the employment of the workman. And there may be circumstances at ending the employment, which would go to show that the workman received personal injury as a result of the accident arising out of his employment."
The implications of the expression "out of and in their course of employment" have also been extended to a case by Madras High Court in a case reported in (AIR) 1943 Madras 353, K. Ramabrahman v. Traffic Manager, Vizagapatnam Port. A workman was employed by the contractor of the Port Authorities for loading manganese ore into ships at a dump within the harbour premises. While returning, he had to cross the railway lines. There was a notice prohibiting the persons from crossing the railway line, but it was a usual practice for the workmen to cross the railway line in spite of prohibition. The two workmen in that case while crossing the railway line were crushed by an engine. It was held that despite the prohibition and despite the fact that there was no necessary connection between the workmen and the crossing of railway line, the accident had arisen out of and in course of employment. The risk was incidental to that employment as distinguished from a risk to which all members of the public were alike exposed. Similarly, in the instant case, the risk incurred by Sk. Abdulla for going to the bazaar after resting his jeep, was incidental to his employment of taking the jeep to Renapur as against the risk which all members of the public may have been exposed on account of the unruly mob in the market.
10. In yet another case, in which a workman's hand was fractured on account of an assault initiated by one of the employees of a mill and assaulted by three outsiders, he was granted compensation by this Court in a case reported in Mohanlal Prabhuram v. Fine Knitting Mills Co. Ltd., Ahmedabad (supra). It was observed in this case that (1960-I-LLJ-439 at 442) :
"If the evidence of Deoshankar is accepted then it is clear that the petitioner did not contribute by his own action or conduct to the peril. It is equally clear that the petitioner was a helpless victim of the assault which was by one of the employees of the Mill, who was assisted by three outsiders. It is also clear that the attack took place upon the petitioner while he was engaged in carrying out his day-today duties. That being the case it must be held that the injuries suffered by the petitioner were incidental to his employment. There was also a casual connection between the accident and the employment, and, therefore, accident must be taken to have arisen out of employment of the petitioner".
The facts of the instant case are also the same and it shows that the accident having taken place without the fault of workman and while he was on duty at Renapur must be taken to be during the course of his employment and also arising out of the employment on account of risk which was incidental to his duty of taking the Bank officials to Renapur. The observations made by justice Chagla, C.J. in this connection, relied upon in (1954-II-LLJ-403), Bhagubhai v. General Manager, Central Railway, V. T., Bombay are pertinent which are as follows (pp.404-405) :
"If the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a casual connection is established between the accident and the employment. The fact that the employee shares that peril with other members of the public is an irrelevant consideration. The peril which he faces must not be something personal to him; the peril must be incidental to his employment. He must not by his own act add to the peril or extend the peril. Once the peril is established, it is for the employer then to establish either that the peril was brought about by the employee himself, that he added or extended the peril, or that the peril was not a general peril but a peril personal to the employee."
In the instant case, the respondents have not adduced any evidence to show that the peril of death in which Sk. Abdulla succumbed was brought about either by Sk. Abdulla or that he added or extended the peril. But for Sk. Abdulla going to Renapur by driving a jeep, on a weekly bazar day, as a part of his duty, he would not have been exposed to the peril of facing a deadly assault. The respondents despite having notice and having been given opportunity, have not shown that the peril was brought about by Sk. Abdulla himself or that he added or extended the peril. In view of this factual situation, it must be said that the death caused to Sk. Abdulla was a result of an accident out of and during the course of his employment, and as such, the respondents were liable to pay the compensation to the appellants i.e. wife and her minor children of Sk. Abdulla, in accordance with the provisions of the Workmen's Compensation Act, 1923.
11. The salary of Sk. Abdulla was Rs. 726.50 ps. per month at time of his death, as per the evidence of DW 1. The District Recovery Officer, Mr. Shirsat, D.W. 1 stated in his evidence that an amount of Rs. 5767.14 ps. was paid to Sk. Abdulla, which was amount of the salary of Sk. Abdulla, after deducting the amount of Rs. 970.24 ps., which was recoverable from Sk. Abdulla. Obviously, this amount was on account of arrears of salary due to Sk. Abdulla and cannot, therefore, be taken into consideration in the amount of compensation payable to the widow and children of Sk. Abdulla
12. The claim was made for Rs. 24,000/- by the appellants as compensation with interest and penalty, which should have been accepted by the learned Commissioner - Civil Judge, Senior Division, Beed. The appeal, therefore, has to be allowed. In the result the application made by the appellants before the Commissioner - Civil Judge, Senior Division, Beed, is allowed and it is hereby directed that the respondents shall pay to the appellants Rs. 24,000/- with interest at the rate of 6 per cent from the date of application with a further sum not exceeding fifty per cent of such amount of interest, as there was no justification for denying and delaying the claim of compensation, till recovery of the amount. The appeal is thus allowed with costs.