Orissa High Court
Divisional Manager, Oriental ... vs Subas Chandra Swain And Anr. on 4 July, 2007
Equivalent citations: 104(2007)CLT343, 2007(II)OLR305
Bench: Chief Justice, I. Mahanty
JUDGMENT A.K. Ganguly, C.J.
1. This appeal has been filed by M/s Oriental Insurance Co. Ltd. impugning a Judgment of the Learned Single Judge in Misc. Appeal No. 713 of 1996. The Learned Single Judge was pleased to hold that the Learned Counsel for the Appellant only urged that the Commissioner for Workmen's Compensation gave a direction to the claimant to appear before the Chief District Medical Officer, Cuttack for examination and assessment of disability and same having not been done the entire award was liable to be set aside. The Learned Single Judge, however, did not accept the said contention on behalf of the insurance company in view of the finding by the Commissioner on Issue No. 3 at page 6 of the Commissioner's Judgment. Quoting the finding, of the Commissioner on the said issue, the Learned Single Judge held that the grievance raised by the Learned Counsel for the insurance company cannot be sustained. The Learned Single Judge also came to the conclusion that in any event the said contention raised by the Learned Counsel for the insurance company is not one of law to be canvassed under Section 30 of the Workmen's Compensation Act. Saying so, the Learned Single Judge dismissed the Miscellaneous Appeal.
2. While this appeal was heard before this Court, Learned Counsel for the insurance company-Appellant has urged a totally new point, namely, that there is no nexus between the employment and the injuries sustained by the workman and in the absence of any nexus between the two, the injuries which have allegedly been sustained by the workman cannot be said to have been sustained out of and in course of employment and as such the award given by the Commissioner cannot be sustained.
3. We have looked into the records and the grounds of appeal. From the grounds of appeal which were filed before the Learned Judge of the first Court, we do not find that the aforesaid point was ever taken as a ground by the insurance company. Therefore, totally new ground has been taken by the Learned Counsel for the insurance company in this Letters Patent Appeal. It is well settled that normally new ground cannot be taken for the first time in Appeal. This has been decided by this Court in the case of New India Assurance Co. Ltd. v. Raj Kishore Nayak and Ors. reported in 1995 LAB. I.C. 2750 (see paragraph 4 ).
4. Despite the aforesaid legal position, Since a new point has been taken by the Learned Counsel for the Appellant and the same is a mixed question of fact and law, we have permitted the Learned Counsel to argue on that point and to cite a few Judgments. It may be noted that when the appeal was first taken up on 25.6.2007, the Learned Counsel for the Appellant wanted to urge that the finding of the first Court to the effect that the application filed by the Appellant before the Commissioner was not allowed is a wrong finding. The Learned Counsel wanted some time from this Court to show from the record that its application was allowed. The matter was adjourned on the prayer of the Learned Counsel. But on the adjourned day i.e., on 2.7.2007 that point was not argued but the only argument was that the injury sustained by the workman cannot be said to have been in the course of or arising out of employment.
5. In support of his contention, Learned Counsel for the Appellant has relied on two Judgments. One of them is New India Assurance Co. Ltd. v. Bishwanath Das and Anr. . In that case the Learned Judges of the Division Bench of Calcutta High Court held that where the Commissioner allowed compensation on the basis of 100% disability as per assessment made by a doctor who was not qualified any appeal against the award of compensation by the Commissioner is maintainable as it involves a question of law. We fail to understand the relevance of the aforesaid ratio to the facts of the present case. Here it is nobody's case that the compensation was granted to the workman by the Commissioner on the basis of assessment made by a doctor who is not qualified.
6. However, the other Judgment which was cited by the Learned Counsel for the Appellant was rendered by the Hon'ble Suprerme Court in the case of Employees' State Insurance Corporation v. Francis De Costa . In that case, the Learned Judges of the Supreme Court held that unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2(8) of the Employees' State Insurance Act, 1948. In that case what happened was that the injuries were sustained by the employee while he was on his way to the factory and the accident took place one kilometre away from the place of employment. On those facts, the Hon'ble Supreme Court held that the casual connection between the injuries and the employment was not established. That was the only point, as noted above, which was argued by the Appellant's Counsel.
7. The facts in the instant case are substantially different. In the instant case, before the Commissioner Issue No. 2 was framed on this point and Issue No. 2 is as follows:
Whether the accident arose out of and in course of employment of the applicant under Opposite Party No. 1?
From the facts, it appears that the workman Subash Chandra Swain was working as a helper in a vehicle bearing registration No. OIC 7645 for a period of one year and six months prior to the date of accident. On 3.2.1991 the vehicle was in Brundaban garage at Jagatpur for repairing the engine. The workman was deputed on duty in that garage for looking after the repairing job. After taking permission of his employer, on 3.2.1991 while the workman when returning home with his brother on a bicycle, a truck bearing registration No. OSM 4561 dashed him as a result of which he sustained fracture. So, it is not in dispute that the workman was coming back after discharging his duty and while he was coming back from the place of duty the accident took place. But in the case of Francis D. Costa the accident took place prior to the commencement of the duty. Therefore, there is a world of difference in the fact situation between the two cases. If an accident takes place prior to the commencement of the duty no casual connection can be said to have been established. Where the accident takes place after the commencement of the duty and when it is not in dispute that the claimant was coming back after discharging his duty, in such a case the accident can be said to have taken place out of his employment.
8. This expression 'arising out of and in course of employment" which finds place in Section 3 of the Workmen's Compensation Act, 1923 has been virtually lifted from the English Act of 1897. This phrase has been characterized by Justice Frank Murphy of the Supreme Court of the United State as 'deceptively simple and litigiously prolific'. See Cardillo, Frank A.V. Liberty Mutual Insurance Co. reported in 330 US 469 at page 479. If we analyse the expression "arising out of and in course of employment", we find that two ideas have been rolled into it. Firstly, the phrase 'in course of employment' suggests a particular point of time meaning thereby that the injury must have been inflicted within the currency of employment. But the other expression 'out of employment' obviously connotes that the injury might have been caused as a result of some casual connection between the employment and the injuries. In other words, if the injury is in some way incidental to the duties of the workman and unless the workman has invited the injury by endangering himself in any unreasonable way, the injury will be one out of employment. That is why in Section 3 of the Act the expression which has been used is 'employment' and not 'work'. The word 'employment' is much wider than the word 'work'. Therefore, when the Legislature has consciously used the expression 'employment' there is a notional extension of the sphere of work workman in the expression 'employment'.
9. In the instant case the workman was engaged by his master to look after the repairing work and after discharging his duty while the workman was returning the accident took place. Therefore the decision in Francis De Costa does not apply to the facts of the present case.
10. The aforesaid concept of 'in the course of and arising out of employment' has been very elaborately discussed by the Hon'ble Supreme Court in the Judgment in Mackinnon Machenzie and Co. (P) Ltd v. Ibrahim Mahmmed Issak . The relevant observations by Justice Ramaswami, as His Lordship then was, while speaking for three Judge Bench of the Supreme Court, are as follows:
...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 casual 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....
The aforesaid decision in Mackinnon Machenzie's case has also been followed by the Hon'ble Supreme Court in (2001) 9 SCC 395 : (1995) Supp. (2) SCC 601 and (1991) 3 SCC 530.
11. Apart from that there are Judgments to the effect that when a workman is coming back after discharging his duties and has met with an accident, in such a case the accident has been construed to be covered within the sweep of expression of arising out of employment'. Reference in this connection be made to a Division Bench decision of the Calcutta High Court in the case of Naima Bibi v. Lodhne Colliery Co. (1920 ) Ltd. reported in (1977) 50 FJR 242. In that case the workman died as a result of assault sustained by him while going home after completion of duty. Of course the attack on the workman was inflicted in the factory premises while he was going after discharging his duties. The Learned Judges held that such injuries are included within the expression 'arising out of employment'. Same view has been expressed by Justice G.L Oza, as His Lordship then was, in the case of E.S.I. Corporation. Indore v. Babulal and Ors. reported in 1982 LAB IC 468. In that case also the workman was returning after his duty was over.
12. In view of such consistent judicial opinion, it is not possible for this Court to accept the argument which is raised for the first time before this Letters Patent Bench by the Learned Counsel for the Appellant. This Court is of the opinion that the decision in the case of Francis De Costa was rendered on a different fact situation.
13. Apart from that, this Court is reminded of its duty while construing the provisions of the Workmen's Compensation Act, which is a social welfare legislation. In construing such legal provision the Court has a duty to construe it in a manner which preserves the right of the workman belonging to a socially weaker Section and to eschew an interpretation which takes away the benefit, provided the interpretation in favour of the workman is reasonably possible in the facts and circumstances of the case.
14. For the, reasons discussed above, this Court is of the opinion that the present Letters Patent Appeal filed by the insurance company is without any merit and it deserves to be dismissed, and the same is hereby dismissed. There will however, be no' order as to costs.
I. Mahanty, J.
15. I agree