Patna High Court
Bhurangya Coal Co. Ltd. vs Sahebjan Mian And Anr. on 20 March, 1956
Equivalent citations: AIR1956PAT299, (1957)IILLJ522PAT, AIR 1956 PATNA 299, 1956 BLJR 288, 1956 10 FJR 423, (1957) 2 LABLJ 522
JUDGMENT Ahmad, J.
1. This is an appeal under Section 30, Workmen's Compensation Act, 1923, by the employer Bhurangya Coal Company Limited against the order dated 27-8-1951 of Mr. R. S. Pandey, Commissioner for Workmen's Compensation, Bihar, awarding a sum of Rs. 2,000/- to the claimant Sahebjan Mian as a compensation for the fatal injury caused to his son Kasim Ali on 20-6-1949, while the deceased worker was working as a Munshi in the premises of the aforesaid Company (to be referred hereafter as Company).
2. There is no dispute on the point that on the date of the accident Kasim Ali was in the employment of Bhurangya Colliery as a Munshi on a salary of Rs. 65/- per month and that on 20-6-1949, he died as a result of an accident which occurred within the premises of the colliery on or near the haulage road between inclines 24 and 25 (as shown in the map Ex. 17(b) ) and further that the accident was due to a collision between the deceased and a rake of tubs while they were moving up on that haulage road.
3. The version of the occurrence as given by the claimant is that at about that time Kasim Ali having taken attendance of coal-cutters was busy with the distribution of empty wagons to them at incline 25 and in the course of that he went up to incline 24 to see if the wagons there had been loaded. On his way back from there, when he had covered about half the distance, he suddenly saw the rake of tubs moving up towards him on their way back from the side of incline 25.
Seeing the tubs heading towards him, Kasim Ali, it is said, immediately clung against the side of the haulage road, lest they might collide against his body, but as, ill-luck would have it, the space at that place was too narrow with the result that the wagons in spite of all care on his part did not leave him unhurt and that too so seriously that he died then & there. According to the claimant, the refuge hole between inclines 24 and 25 was from that place at a distance of 20 ft. and so it was not at all possible for Kasim Ali in. that short notice to travel down to it for his protection there.
Further, according to the claimant, there was no other passage excepting the haulage road for the workmen of the colliery to go up and down the colliery and that it was incorrect to say that the workers had been forbidden to go by that haulage road or that they used to receive any kind of warning as and when the wagons used to be in motion. The evidence of Laskar (P. W. 2) for the claimant suggests that most likely Kasim Ali on the day of accident was working in the night shift & that probably the time for, that shift was then about to close, but he being the Munshi could not leave the mines until the distribution of empty wagons to the coalcutters was completed.
The evidence of that witness also shows that in the colliery sometimes there used to be four shifts overlapping one another and that there was no such arrangement that the day shift workers should not enter the mines unless the night shift workera had made their exit from there. On these facts the claim made before the Claim's Officer was that the death of the worker Kasim Ali was caused by an accident arising out of and in the course of his employment as contemplated by Section 3(1), Workmen's Compensation Act (hereafter to be referred to as the Act) and that the Company as an employer was liable for the compensation to the family of the deceased worker.
4. The employer Company in defence pleaded that Kasim Ali had absolutely no business on that day to travel by the haulage road and as a matter of fact that route was prohibited under the Mine Rules and Regulations and the workers had been expressly forbidden also to travel by it. Their positive case, as it appears from the evidence of N.B. Maccua (O.P. No. 1) examined for the Colliery, waa that there was an express notice to the effect that no workmen should travel by the haulage road when the rope was in motion and, further, the deceased Kasim Ali had on that day, as a matter of fact, completed his night shift and the accident happened much thereafter.
5. The learned Commissioner on a consideration of the entire evidence on the record accepted the evidence of the witnesses examined on behalf of the claimant and came to the conclusion:
"(1) That the haulage road was not altogethen forbidden and that the haulage road was being used by the workmen".
(2) That the accident took place while Kasim was on duty inside the mine, and that the accident arose out of and in the course of his employment". And on those findings the learned Commissioner directed that the Company should pay a sum of Rs. 2000/- to the claimant as compensation for the death of Kasim Ali under Section 4 of the Act. The present appeal is directed against the aforesaid order. (6) Before I enter into the merits of the appeal, it is necessary to dispose of two short points as to its maintainability. One is as to whether the appeal is at all maintainable tinder Section 30(1) of the Act and the other is as to whether it is barred by time. In my opinion, the first question is fully answered by a Division Bench of this Court in the case of 'Ramnivas v. Mt. Mariam', 1951 Pat 260 (AIR V 38) (A) and also by a decision of the Calcutta High Court in the case of 'B.P.Nandy v. General Manager, East Indian Rly', 1954 Cal 453 (AIR V 41) (B). Mr. Chatterji appearing for the appellant Company has conceded that the appeal in this case is one under Section 30(1) (a) of the Act. That sub-section reads:
"An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum." It is true that this sub-section is not happily worded and there is much room for improvement in it. But the order under appeal, as it stands, leaves no room for doubt that it is one for a lump sum compensation. Therefore, on that ground alone, the order has to be held as appealable under Section 30 (1) (a), Workmen's Compensation Act,
7. The second short point relates to the question of limitation. The accident resulting in the death of Kasim Ali occurred on 20-6-1949. His dead body was examined by the doctor on the same day, that is, on 20-6-1949, about half an hour after his death. The junior Inspector of Mines, Mr. S. S. Prasad, as it appears from the papers on the record, examined witnesses in the course of his investigation on the next day, that is, on 21-6-1949. The application for compensation was filed on 7-10-1949 and the objection thereto was submitted by the Company on 28-12-1949.
The Commissioner appointed under the Act examined witnesses in that proceeding on 30-5-1951 and on hearing the parties delivered the order under appeal, as already stated, on 27-8-1951-. Thereafter this appeal was filed on 9-11-1951. That was then as filed obviously barred by time under Section 30 (2) of the Act. For that reason an application for the condonation of delay as provided in Section 30(3) of the Act was also filed along with the memorandum of appeal mentioning therein that an application for the nece-Esary certificate by the Commissioner as required by the proviso to Section 30 (1) (a) of the Act had already been made.
The Court on hearing the application condoned the delay and admitted the appeal. It, however, appears that even by the time the order condoning the delay was passed the certificate referred to in the petition had not in fact been filed in the Court. Indeed it was for the first time filed on 16-1-1955 before us in the course of the hearing of this appeal. The third proviso to Section 30 (1) (a) of the Act says :
"Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against."
On the basts of this proviso it has been argued by Mr. Harians Kumar appearing for the respondent that the appeal is barred by time and as such it should be dismissed in limine. This point is not without difficulty. Here also I think that the proviso is not happily worded and the language used therein is open to various interpretations as held by this Court in 1951 Pat 260 (AIR V 38) (A). Therein Sarjoo Prosad J. (as he then was) observed :
"On the language of the section it is doubtful whether when an appeal has been filed within the period of limitation allowed by law, it would be time-barred merely because it is not accompanied with a certificate by the Commissioner to the effect that the appellant has deposited with, him the amount payable under the order appealed against. It says that no appeal by an employer under Sub-clause (a) shall lie unless the certificate is given. In other words, if the certificate is not produced at some stage before the hearing of the appeal, the appeal will not be entertained.
The limitation of 60 days applies to the preferring of an appeal. It is no doubt true that the certificate in question may be a very material document which the law enjoins to be filed in order that the appeal may be entertained, but I feel doubtful whether merely because of the non-production of this certificate within the period of limitation the appeal will become barred."
I, however, think that though there is sufficient force in the aforesaid observation yet the proviso to Section 30 (1) of the Act on a true construction demands that the certificate should, be filed along with the memorandum of appeal as an essential part of it. In other words, an appeal as contemplated by ifc cannot be said in law to be an appeal unless it is accompanied with the aforesaid certificate of the Commissioner. If that is the import of the proviso, which, I think, it is difficult to resist on its language, then the filing of a memorandum of appeal cannot by itself amount in law to a formal presentation of an appeal unless the memorandum of appeal is accompanied with the certificate referred to in that Proviso. That being so, I think it has to be held that the appeal as presented here is time-barred. But on the facts of this case and on the submissions made by Mr. Chatterji as to the circumstances in which the certificate could not be filed earlier, though it was secured long before, I think it is a fit case in which the delay in filing the certificate should be condoned under Section 30 (3) of the Act, if that delay does not by implication, as submitted by Mr. Chatterji already, stand condoned by the order passed by this Court on the application made by the appellant under Section 30 (3) of the Act.
8. Now turning to the merits of the appeal, Mr. Chatterji has in this connection advanced two contentions. In the first place he has submitted that the injury to Kasim Ali was not caused by accident arising out of and in the course of his employment as contemplated by Section 3 (1) of the Act and next he has tried to establish that the direct and substantial cause which led to the fatal injury on the person of the deceased worker was his wilful disobedience of the specific order and rule forbidding all workers to travel by the haulage road and as such it was a case covered by proviso (b) (ii) to Section 3 (1) of the Act.
In my opinion, both these two submissions in ultimate analysis, as will presently appear from the discussions made hereafter, are based on facts and not on any substantial question of law as contemplated by the first proviso to Section 30 (1) of the Act, and, therefore, on that ground alone this appeal should stand dismissed. But in view of the fact that the case has been argued in great detail, a short reference to all the contentions raised is, I think, necessary.
9. In support of his first point Mr. Chatterji took us through the entire evidence on the record and pursuaded us to hold that the materials on the record do not warrant the conclusion arrived at by the Commissioner that the injury on the person of Kasim Ali was caused by an accident arising out of and in the course of his employment as a workman. I find it difficult to accept this contention. In my opinion, the evidence of P.Ws. 2 and 3 fully supports the finding of the Commissioner. It is true that these two witnesses were not examined by the junior Inspector of Mines Mr. S.S. Prasad on 21-6-1949.
There is, however, no material on the record to show as to why they were not examined by him. If the company wanted to attack their evidence on that ground, it was incumbent on the company to examine Mr. S.S, Prasad as a witness in support of their contention before the Commissioner. That not having been done by the Company, it is too late for them now to contend that the evidence of the aforesaid witnesses should not have been acted upon simply for the reason that they were not examined at the earlier stage by the junior Inspector of Mines. Apart from that I think the evidence of the claimant on this point is not only sufficient but one-sided.
10. A grievance in this connection has also been made by Mr. Chatterji that the Commissioner was not justified in law to make a summary record of the evidence deposed before him. According to him, that has resulted in some prejudice to his client. Here also I find myself unable to accept this contention. In the first place the reading of the evidence shows that it was most likely recorded by the Commissioner in extenso. Further Section 25, Workmen's Compensation Act says :
"The Commissioner shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds, and such memorandum shall be written and signed by the Commissioner with his own hand and shall form part of the record.
Provided that, if the Commissioner is prevented from making such memorandum, he shall record the reason of his inability to do so and shall cause such memorandum to be made in writing from hig dictation and shall sign the same, and such memorandum shall form part of the record:
Provided further that the evidence of any medical witness shall be taken down as nearly as may be word for word".
Thus, even if it be accepted that the evidence recorded in this case was the summary of what the witnesses deposed, that cannot be a ground for attacking the order based on it for the section quoted above gives ample power to the Commissioner to record only a substance of the evidence and not necessarily the full of it excepting in the case of a medical witness.
11. I may also state here that Mr. Chatterji in. taking us through the evidence has drawn our attention to the statements of two more persons, namely, Wazit Mian and Gogon Goswami, which they made on 21-6-1949, before the junior Inspector of Mines Mr. S.S. Prasad in the course of the preliminary investigation made by him. It is not denied that those two persons were not examined as witnesses before the Commissioner appointed under the Act nor Mr. S.S. Prasad was produced before him as a witness.
That being so, it is obvious that in law the statements of those persons made on 21-6-1949, cannot be considered in the case before us. It, however, appears from the evidence of Mr. N.B. Mac-cua, the witness for the company, that one of these two persons, namely, Wazit Mian, had died before the case was taken up by the Commissioner. Therefore, according to Mr. Chatterji, the statement of Wazit Mian could be tendered during the hearing of the case before the Commissioner at least as the statement of a dead person.
This submission too, in my opinion, without substance as the statement made by Wazit Mian before the junior Inspector of Mines on the facts of this case cannot be said to be covered by the terms of Section 32 or Section 33, Evidence Act. Section 32 talks of specific matters none of which arises here while Section 33 deals with the statement of a witness made in a judicial proceeding and it is clear that the investigation made by the junior Inspector of Mines was not a judicial proceeding and the other party at that time had no right or opportunity to cross exa-mine him.
Therefore, the statement of Wazit Mian on that ground also cannot be looked into this case. Further it is not denied that as a matter of fact that statement was not tendered at the trial. Lastly, on merits also I think that statement does not give any support to the case of the company.
12. Next Mr. Chatterji submitted that the Commissioner made an error in not examining Wazit Mian and Gogon Goswami as witnesses in the course of the enquiry conducted before him as it was incumbent upon the Commissioner to do it under Section 23 of the Act. I must confess that in spite of all efforts on my part I have failed to follow this part, of his argument. Section 23 simply deals with the power of the Commissioner and has nothing to do with the so-called duty as suggested by Mr. Chatterji. Thus I find that the finding of the Commissioner to the effect that the accident resulting in the fatal injury to Kasim Ali arose out of and in the course of his employment is fully supported by the evidence on the record and is not open to interfere even on the point of law within the meaning of Section 30 of the Act.
13. Now coming to the second point raised by Mr. Chatterji that the death of Kasim Ali was due to his wilful disobedience as contemplated by proviso (b)(ii) of Section 3(1) of the Act, I think it would be useful to read here that provision of law first. The proviso to Section 3(1) is under two heads (a) and (b) and it reads:
"Provided that the employer shall not be liable -
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding seven days;
(b) in respect of any injury, nor resulting In death, caused by an accident which is directly attributable tq -
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose, of securing the safety of workman, or
(iii) the wilful removal or disregard by the workman of any safety, guard or other device which he knew to have been provided for the purpose of securing safety of workman."
The contention of Mr. Chatterji is that in the present case for the purpose of securing the safety of workmen, the company had by a positive rule as also by an express order forbidden the workers td travel by the haulage road; & if in spite of all these Kasim Ali travelled by it and in doing that met with the accident resulting in a fatal injury to him. the company cannot be held liable for a case like that under the Act, for on the face of it it is attributable to a wilful disobedience on the part of the worker as contemplated by proviso (b) (ii) to Section 3(1) of the Act. In my opinion, this contention also is without substance and that for a number of reasons.
14. In the first place, there is nothing on the record to prove that there was any such rule as claimed by the Company. As for the order also, the evidence is not the least satisfactory. All that was stated on this point by Mr. N. B. Maccua, the only witness examined on behalf of the company, was :
"There is no notice to the effect that no workman can travel by the haulage road when the rope is in motion. There is a separate road provided for the use of the workmen. Kasim Ali was asked by Wazit Ali not to travel by the haulage rope, but he did not listen to him."
15. This statement does not speak of any order but only of a notice and as the notice itself has not been brougnt on the record, not much reliance can be placed in support of that claim on this isolated and uncorroborated oral statement of a partisan witness like Mr. Maccua. Further in his reply to a court question he stated:
"Kasim was required during the course of his duty to travel from one pit to another. He should have done either of two things. He should not have travelled by the haulage road and should have taken the alternative route -- & if he travelled by the haulage road, he should have taken shelter in the refuge hole."
This reply, in my -opinion, contrary to his claim, suggests at least by implication that in fact there was no rule or order for forbidding the workmen, to travel by the haulage road. Therefore, the very premise of Mr. Chatterji's argument as to the existence of such a rule and order stands negatived or. is at least left unproved.
16. In the second place proviso (b) (ii) of Section 3 (1) of the Act demands not only that the existence of such a rule or order as claimed here should be proved but along with it some other conditions too as laid down therein should be satisfied. A careful reading of it shows that in order to bring a case under proviso (b) (ii) of Section 3(1) of the Act, the company has to establish firstly that an order or rule was in fact already in force at the time when the accident happened; secondly that the substantial purpose of that rule or order was that of securing the safety of workman as such, thirdly that the order or rule was couched in words which in their lace fairly and clearly indicated that purpose; fourthly that its terms were brought to the notice of the particular workman who was the individual injured in this case, fifthly that the order or rule was disobeyed by that individual; sixthly that the disobedience of the rule or order by that individual was wilful and deliberate and not only the result of mere negligence or due to a mistaken mode of doing a particular task or due to a wrong decision in an emergency; seventhly that the accident was directly attributable to the aforesaid disobedience. In the present case not only that the evidence-on the very existence of the rule or order is not at all sufficient as already stated but also that there if, no evidence whatsoever, on elements other than, that.
17. Lastly, in my opinion, proviso (b)(ii) of, Section 3(1) applies to only those cases of injuries which do not result in death. Where, therefore, the injury has resulted in death the question as to the disobedience of any rule or order is not material at all, so long as it can be reasonably held that the accident arose out of and in the course of the employment.
In considering this latter aspect of the question, the ambit and scope of the man's employment has to be looked at in relation to the contract which he made with the employer. The test in fact applicable in such cases is whether it was or was not a part of the injured person's employment to hazard or suffer or do that which caused his death. Where the workman when he met with his death was doing-the very thing which he was employed to do the mere fact that he had no right to be working in the place where he was when he met his death, does not mean that the accident did not arise out. of and in the course of the employment and the employer would in such cases be liable to compensation under Section 3.
This principle is well established by the weighty pronouncement of Lord Macmillan in. Northumbrian Shipping Co. v. McCullum', (1932); 101 LJ KB 664 (C). In his address in that case-Lord Macmillan observed :
"It has been recognised time and again that the sphere of a workman's employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer's premises or which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his master's business while he is using that access.
The seaman who on his way back to his ship has left the public highway with its risk common to all wayfarers and has entered the private premises of the harbour in which his ship lies with its special risk to which only those who have business at the harbour, are exposed, seems to me to have come within the protection of the Act, for if he sustains an accident while using this access he sustained it by reason of risks incidental to his employment which he would not have encountered but for his employment."
In this case it is not challenged that the injury caused to Kasim Ali did result in his death and that, as found above that accident happened while he was within the premises of the company distributing empty wagons to the coal cutters, which was a part of his job. Therefore, on these facts alone the question of wilful disobedience as laid down in proviso (b) (ii) cannot exonerate the company from the liability as specified in the substantive part of Section 3(1) of the Act. Further, as stated in item six of the elements specified above to come within Section 3 (1) (b) (ii) of the Act, the workman must be in wilful disobedience of an order. That means mere disobedience is not sufficient.
Disobedience may be the result of forgetful-ness or the result of impulse of the moment. Such would not be sufficient as the statute exempts the employer from liability only when the disobedience is wilful, that is deliberate and intended CBhut Nath Dal Mills v. Tirat Mistry', 1949 Cal 295 (AIR V 36) (D) )" A man does a thing wilfully when he does it intentionally because he expects some benefit to himself, either some convenience or an easy way of doing a piece of work & so forth -- 'Tiku Kahar v. Equitable Coal Co. Ltd.', 1930 Cal' 58 (AIR V 17) (E). Mere negligence of the worker cannot be regarded as wilful disobedience by the workman to an order expressly given.
Contributory negligence on the part of the employee does not exonerate the employer from liability to compensate the employee if the accident could not have been avoided by the exercise of ordinary care and diligence. Here, as the facts show, there is no evidence whatsoever to prove that there was in fact ever in force any Order or Rule as claimed by the company and much less the ingredient that the disobedience of the same on the part of Kasim Ali was wilful with a view to benefit himself in some form or other.
18. Thus, the second contention advanced by Mr. Chatterji also fails.
19. Lastly I may mention here that in support of this appeal the question of added peril was also raised by Mr. Chatterji in support of the contention that the company was not liable for the fatal injury caused to the workman. In this connection our attention was drawn to three cases namely --'Barnes v. Nunnery Colliery Co. Ltd.', 1912 AC 44 (F); -- 'Stephen v. Cooper', 1929 AC 570 (G) and -- 'Gourishankar Bhakat v. Radha Kissen Cotton Mills', 1933 Cal 220 (AIR V 20) (H). In my opinion the question of added peril does not arise here at all.
The principle of added peril contemplates that if a workman while doing his master's work undertakes to do something which he is not ordinarily called upon to do and which involves extra danger he cannot hold his master liable for the risks arising therefrom. This doctrine, therefore, comes into play only when the workman is at the time of meeting the accident performing his duty. The case here as already stated above has been initially argued on the footing that the fatal injury caused to the deceased workman did not arise out of and in the course of his employment.
Therefore, this question of added peril can at best be considered only as an alternative defence, that is, on the assumption that the fatal injury to the deceased workman arose out of and in the course of his employment. But here also the difficulty that stands in the was of the appellant is that the evidence on the record does not bear out the proposition that the deceased workman at the time when the accident occurred had undertaken in the course of his employment something which ordinarily he was not to be called upon to do and which involved extra danger.
What in this case is firmly established and proved is that the deceased workman had at that time gone from incline 24 to incline 25 to dc something which was a part of his usual job and through a route not forbidden; and while he was on his way back from there he suddenly saw the rake of tubs coming up towards him. At that he tried to avoid the danger but the space there being narrow, the attempt failed. On these facts the defence of added peril, in my opinion, cannot be said to have any foundation whatsoever. Therefore, I need not dilate any further on the law of added peril or on the authorities cited in support thereof.
20. In the result, therefore I hold that the appeal is without substance and there is no ground made out for any interference with the order passed by the Commissioner. It is accordingly dismissed with costs.
Misra, J.
21. I agree that this appeal should be dismissed. I wish only to add that I do not express any final opinion on this occasion as to whether an appeal would be incompetent in terms of the proviso to Section 30, Sub-section (1) (a) if the memorandum of appeal is not accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
I am, however, inclined to agree with Sarjoo Prosad J. that although the required certificate has to be filed before the appeal is heard, the mere fact that it is not presented along with the memorandum will not have the effect of rendering the filing of the appeal itself invalid if it is otherwise in order. Since the point does not strictly arise in this case, I do not 'consider it necessary to go into the matter more elaborately.
22. As to the doctrine of added peril, I think it useful to quote the language of Lord Haldane in -- 'Lancashire and Yorkshire Rly. Co. v. Highley', 1917 AC 352 (361 & 365) (I), cited with approval by Lord Hailsham in (1929) AC 570 (574) (G), that the expression "added peril" means a peril "voluntarily superinduced on what arose out of his employment, to which the workman was neither required nor had authority to expose himself."
This is a pithy formula which can always be employed as the crucial test in the facts of a case which are in the debatable region when a workman meets with an accident while he is apparently performing his duties as a workman and which may yet not be incidental thereto, in which case the accident cannot be regarded as having occurred in course of the employment so as to entitle the workman to any compensation.