Kerala High Court
E.S.I. Corporation vs Chellappan on 29 August, 2000
Equivalent citations: [2000(87)FLR702], (2001)ILLJ333KER
JUDGMENT Ms. K.K. Usha, J.
1. Appeal, at the instance of the E.S.I. Corporation, is against the judgment of the E.I. Court, Alappuzha in I.C. 67/1995. Respondents, who are the father and mother of late C.P. Baiju, filed the application for a declaration that the fatal injury sustained by Baiju was the result of the employment injury caused during the course of his employment -and in view of that, applicants are entitled for dependents' benefits. The E.I. Court allowed the claim. Aggrieved by the above, the Corporation has come up in appeal.
The fact that Baiju was employed as a toddy tapper attached to T. S. 33 at Mattathiveli and he was a covered employee under the E.S.I. Scheme, is not disputed. The contention raised by the appellant is that the death of Baiju did not occur out of the employment and: therefore applicants are not entitled to any benefit. Baiju, while on his way to do tapping, was attacked by certain persons on January 17, 1994 and as a result of the injuries, he died. Appellant would contend that the cause for the attack on Baiju was personal animosity between him and those who attacked him. Therefore, it cannot be contended that his death was caused out of employment. In support of the above contention, learned counsel for the appellant; placed reliance on a Full Bench decision of the Allahabad High Court in Mst. Abida Khatun v. General Manager, Diesel Locomotive, Varanasi, 1973-I-LLJ-387. It was held therein that even if the workman met with the accident in the course of his employment, unless it is proved that the accident arises out of employment, no claim would lie by the dependants. There must be evidence to connect the death of the workman with his employment.
If he was killed by a person out of personal animosity, wholly unconnected with the employment, it cannot be taken that the accident arises out of the employment. On this aspect, the Full Bench dissented from an earlier decision of the Bombay High Court in Bhagubai v. General Manager, Central Rly. 1954-II-LLJ-403 (Bom-DB). Bombay decision was rendered by CHAGLA, C. J. It was held that law did not place the additional burden upon the claimant to prove that the accident which arose because of a peril which was not personal to him but was shared by all the employees or the members of the public and once a proximate connection is established between the employment and the injury, the claimant has discharged the burden and the proximate connection between the employment and the injury was the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death.
2. As far as this Court is concerned, there are two Bench decisions on this point, Varkeyachan v. Thomman 1979-I-LLJ-373 (Ker-DB) and United India Insurance Co. Ltd. v. Philo 1997-I-LLJ-76 (Ker-DB). This Court had agreed with the principle evolved by CHAGLA, C.J. in the above mentioned decisions. In both cases, the deceased was a driver. It was held that the term accident for the purpose of the law relating to compensation for personal injuries sustained by workman and employer's liability in that behalf includes any injury which is not designed by the workman himself and it is of no consequence that the injury was designed and intended by the person inflicting the same. But for the engagement of the deceased as a driver, he would not have been in the place where, at that time, he was killed. This Court took the view that, that would be sufficient to hold that the accident which had resulted in the death of the workman, has arisen out of the employment.
3. In the present case, the deceased was a toddy tapper. As far as toddy tapper is concerned, his field of work will take in the area where the coconut trees allotted to him are situate. In the present case, we find that the accident report from the employer would show that the toddy tapper was injured while was about to climb the coconut tree. It is also mentioned there that he was climbing the coconut tree doing the noon tapping. Substantial reliance was placed by the learned counsel for the appellant on the statement given by a neighbour to the police on January 17, 1994 to the effect that the accident happened when the deceased was coming to the property belonging to one Joseph for tapping the coconut tree and it happened in front of the house of her sister-in-law. It is her statement that is being relied on by the learned counsel for the appellant to show that the murder was committed as a result of prior enmity between the parties. The person who had given the statement has not been examined. Therefore, we cannot place reliance on that statement. On the other hand, accident report is given by the employer himself and it was produced by the Corporation along with its written statement. The fact that the deceased used to come regularly at noon time for tapping the trees in the premises of one Joseph has come out from the statement given by the neighbour. May be that the persons who inflicted the injuries were aware of the habit of the deceased in tapping the trees standing on the premises of Joseph at noon time. The injured would not have been present at the place of accident, but for his engagement for tapping trees. Therefore, according to us, the test that has to be applied as laid down in the decisions of this Court, as well as the decision of the Bombay High Court, has been fully satisfied in this case. We therefore find no reason to interfere with the judgment of the E.I. Court.
4. In the result, the appeal fails and it stands dismissed.