Jharkhand High Court
Shanti Devi vs Bokaro Steel Plant Through Its Chief ... on 20 January, 2020
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M. A. No. 374 of 2017
..........
Shanti Devi, widow of Late Maheshwar Mahto, resident of at 9/D, Street-35, House No.393, Bokaro Steel City, P.O. and P.S.- Barla, District- Bokaro, Jharkhand. ............. Appellant.
Versus Bokaro Steel Plant through its Chief Executive Officer, Ispat Bhawan, Bokaro Steel City, P.O. and P.S.- Bokaro Steel City, District- Bokaro.
........ Respondent CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Appellant :Mr. Rajesh Kumar, Advocate.
:Mr. Vandana Singh, Advocate.
For the Respondent :Mr. Shresth Gautam, Advocate.
:Mr. Yogendra Yadav, Advocate.
...........
05/20.01.2020. I.A. No.7246 of 2017 The appellant has preferred this Miscellaneous Appeal with delay of 591 days. For condonation of the same, I.A. No.7246 of 2017 has been preferred on the ground that earlier the appellant has preferred application before this Court but under different jurisdiction, which was subsequently withdrawn. Thereafter, the present appeal has been preferred, as such, there is a delay, which has not caused intentionally rather it was a bona fide mistake.
Learned counsel for the respondent has fairly submitted that delay may be condoned.
Accordingly, the delay is hereby condoned.
I.A. No.7246 of 2017 is allowed.
M. A. No. 374 of 2017Heard, learned counsel for the appellant, Mr. Rajesh Kumar and learned counsel for the respondent, Mr. Shresth Gautam assisted by Mr. Yognedra Yadav.
The appellant being claimant has preferred this Miscellaneous Appeal against the order dated 28.09.2015 passed in WC Case No.07 of 2013 by learned Presiding Officer, Labour Court, Bokaro, whereby claim application preferred by the appellant has been rejected.
Learned counsel for the appellant, Mr. Rajesh Kumar has submitted that under the National Joint Committee for the Steel Industry (N.J.C.S.) agreement the appellant is entitled for compensation. The agreement entered between the parties shows that if an employee died within a period of one hour from the start of his work and on the way to his work place and one hour after his work, he is -2- entitled for such compensation, as such, the appellant has a very good case, which has not been considered by the learned Labour Court.
Learned counsel for the appellant has relied upon a judgment passed by Delhi High Court in the case of Ram Niwas Gupta Vs. Bindu Singh & Ors. 2017 SCC Online Del 7847, which has considered the judgment of the Bombay High Court in paragraph-19, Madras High Court in paragraph-20 and Gauhati High Court in paragraph-22, as such, the same may be considered by this Court. In view of the submission paragraphs-19, 20 and 22 of the aforesaid judgment are reproduced herein for proper appreciation of the case of the appellant as under:-
"19. In State of Maharashtra v. Arti, 2008 ACJ, 1406 (Bombay High Court), an employee killed his superior during an altercation in the office. The application for compensation under the Workmen's Compensation Act was allowed. The Bombay High Court dismissed the appeal. Relevant portion of the said judgment is as under:--
"17. Whether murder tantamounts to an accident: The term "accident" is not defined in the Workmen's Compensation Act. It is also not defined in the General Clauses Act. The learned Judge has therefore, rightly considered the definition of an accident taking into account a dictionary meaning of the term. Black's Law Dictionary defines "accident" under Workmen's Compensation Act as an unforeseen untoward incident which was not reasonably anticipated. The deceased workman could not and did not contemplate his murder. It was an unforeseen and untoward happening.
18. The incident ended in a criminal prosecution. The assaulter was convicted of murder. He has been sentenced to life imprisonment by the Court of Sessions at Solapur could neither be contemplated nor avoided by the victim. The workmen's Compensation Act is a social legislation. It was enacted to give succour to workmen against injuries caused by accident. The object of the Act does not specify the applicability of the Act only in case of accidents by machines. The injury in this case was caused by the act by another human being. It proved fatal. Hence, it tantamount to murder qua the assailant. The injury qua the workman is by an accidental act to which he succumbed. Consequently a murder committed upon a workman has to be taken as an accident.
19. The Judgment and order of the Court of Sessions, Solapur is the pan of record. It has been produced in evidence before the Commissioner and Judge in the claim of respondent No. 1. It has therefore, to be read in evidence. Paragraph 14 of the Judgment shows that on 30th March, 1985 the assailant (accused) applied for optional holiday. 31st March, 1985 was the holiday. He wanted to enjoy it in continuation. His request was refused by his Superior.-3-
Nevertheless he remained absent on 30th March, 1985. The deceased made a report to the Sub-Divisional Engineer in the Head Office. The application of the accused was produced at trial and so was the order passed by his Superior. We are not concerned with whether or not that amounted to sufficient motive to commit murder. The part of the judgment shows how the murder was committed. It resulted in the death of the workman at his work premises.
20. It arose out of a feud directly relating to the work of the workman. He fell victim to the accident by murder only because he performed his duties in the normal course. Hence, the fatal injury was caused to him by such accident arising out of and in the course of his employment. The observation of the learned Commissioner and Judge, to that extent cannot be faulted."
(Emphasis supplied) Madras High Court
20. In G. Amsaveni v. V. Komala, 2013 SCC OnLine Mad 3555 (Madras High Court), a watchman in the appellant's brick's chamber was murdered on duty and a claim for compensation under the Employee's Compensation Act was allowed. S. Vimala, J. upheld the award holding the murder to be an accidental murder arising out of and during the course of the employment. Relevant portion of the judgment is as under:--
"1. Murder, whether tantamount to accident, is the issue raised in this Appeal? If so, whether the accident (of murder) arose out of and in the course of employment, is yet another issue raised.
xxx xxx xxx 4.2 It is not in dispute that the deceased died on account of murder. Whether the murder would amount to accident is the issue to be considered?
The term 'accident' is neither defined under Employees Compensation Act nor under the General Clauses Act. Therefore, the dictionary meaning alone has to be taken into account. According to the Black's Law Dictionary, the term 'accident' means, unforeseen untoward incident, which was not reasonably anticipated. The deceased workman could not and did not reasonably could have anticipated that the unforeseen incident (murder) would happen to him and therefore, it is an accident, as per the definition. xxx xxx xxx When the incident of murder had taken place, in the work place, then the presumption would be that the murder would have been on account of the employment, in the absence of any other evidence pointing out that it could not have been on account of employment. Considering the fact that there is no evidence to show that the murder was out of private dispute between the deceased and somebody else or out of some other motive like murder for gain or sex or property dispute and considering the fact that the incident had taken place in the workplace and the persons, who -4- could have deposed about the incident remaining mute, then the inference is that the murder should have been out of and in the course of employment. Under such circumstances, this Court concur with the findings of the Tribunal that the murder is an accident and that, it took place out of and in the course of employment."
(Emphasis supplied) Gauhati High Court
22. In National Insurance Co. Ltd. v. Sabita Gope, 2000 (2) LLN 655, (Gauhati High Court)(Division Bench) a truck driver was found dead in the cabin of the truck while returning from Khowai to Gauhati. The application for compensation was allowed. The Division Bench of Gauhati High Court upheld the award holding the death of the deceased workman to be an accident in course of employment. Relevant portion of the said judgment is as under:--
"5. ......Accident is not defined in the Act. Therefore, the meaning of accident must be given as understood by the ordinary people in general. As per SHORTER OXFORD ENGLISH DICTIONARY, Third Edition, revised with addenda (Volume I) the word "accident" means I. anything that happens an event; especially an unforeseen contingency; a disaster. Similarly, the BLACK'S LAW DICTIONARY, 6th Edition defines the word "accident" as follows:--
"In an etymological sense anything that happens may be said to be an accident and in this sense, the word has been defined as befalling a change; a happening; an incident; an occurrence or event. In its most commonly accepted meaning, or in its ordinary or popular sense the word may be defined as meaning; a fortuitous circumstances, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlocked for event, happening or occurrence; an unusual or unexpected result attending the operation or performance of a usual or necessary act or event; chance or contingency; fortune; mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops; something happening by chance; something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence."
However, it must be remembered that the dictionary assists in appreciating and comprehending the general sense of the words. However, the words of a dictionary will not control -5- the scheme of the statute. The Supreme Court in Deputy Chief Controller of Imports and Exports, New Delhi v. K.T. Kosalram, observed:
"What particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject-matter, the purpose or the intention of the authority and the effect of giving to them one or the other permissible meaning on the object to be achieved. Words are after all used merely as a vehicle to convey the idea of the speaker or the writer and the words have naturally, therefore, to be so construed as to fit in with the idea which emerges on a consideration of the entire context. Each word is but a symbol which may stand for one or a number of objects. The context, in which a word conveying different shades of meanings is used, is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author."
6. The meaning of the word 'accident' is to be gathered from the context, the subject-matter, the intention of the Legislature, effect of the meaning given and the object of the enactment. While dealing with the meaning of the word 'accident' in the expression 'accident arising out of and in the course of employment' in the (English) Workmen's Compensation Act, 1906 in Board of Management of Trim Joint District School v. Kelly 1914 AC 667 (HL), VISCOUNT HALDANE L.C. observed as follows:--
"It seems to me important to bear in mind that 'accident' is a word the meaning of which may vary according as the context varies. In criminal jurisprudence crime and accident are sharply divided by the presence or absence of mens rea. But in contracts such as those of marine insurance and of carriage by sea this is not so. In such cases the Maxim 'in jure non remota causa sed proxima spectatur' is applied. I need only refer your Lordships to what was laid down by LORD HERSCHELL and LORD BARMWELL when overruling the notion that a peril or an accident in such cases is what must happen without the fault of anybody in Wilson v. Owners of the Cargo per the Xantho 1888 57 LT 701.
It is therefore necessary, in endeavouring to arrive at what is meant by accident to consider the context in which the word is introduced. The scope and purpose of that context may make the whole difference."
"......... What was held in Fenton v. Thorely 1903 AC 443 was the injury and accident were not to be separated and that 'injury by accident' meant nothing more than accidental injury or accident as the word is popularly used," In the same case EARL LOREBURN observed as follows:---6-
"A good deal was said about the word 'accident'. Etymologically, the word means something which happens-a rendering which is not very helpful. We are to construe it in the popular sense, as plain people would understand but we are also to construe it in its setting, in the context and in the, light of the purpose which appears from the Act itself. Now, there is no single rigid meaning in the common use of the word. Mankind have taken the liberty of using it, as they use to many other words, not in any exact sense but in a somewhat confused, or rather in a variety of ways."
"........ In short, the common meaning of this word is ruled neither by logic nor by etymology, but by custom, and no formula will precisely express its usage for all cases."
The House of Lords in the aforesaid case held that the injuries caused by deliberate violence which arose out of and during the course of employment also, amounted to 'accident'. The word 'accident' is construed in a wide canvass depending on the context keeping in mind the ordinary and popular sense in which it is used and understood by the persons concerned. The English Courts have also taken the view that man slaughter arising from negligent driving on the road is covered by the contract of indemnity in respect of accidental injury; (1921) 3 KB 327 and (1927) 2 KB 311, - referred and relied in Marles v. Philip Trant and Sons Ltd. 1954 1 QB 29 (CA) by DENNING L.J. in this context it would be appropriate to refer to a decision of the Bombay High Court rendered in Bhagubai v. General Manager, Central Railway, V.T. Bombay, reported in 1954 II LLJ 403. In the above case, the deceased was employed in Central Railway at a station and he lived in the railway quarters adjoining the railway station. It was found that the only access for the deceased from his quarters to the railway station was through the compound of the railway quarters. One night the deceased left his quarters a few minutes before midnight, in order to join duty and immediately thereafter he was stabbed by some unknown person. There was no evidence that the employee was done to death because someone was interested in murdering him. Nor was there any evidence that the employee was bound to be murdered whether he was on the spot in the course of his employment or anywhere else. The Bombay High Court in that case held that the accident arose out of the employment. While deciding the case CHAGLA, C.J. who delivered the judgment in the aforesaid case made the following observation:--
"There must be a causal connection between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. The cause contemplated is the proximate cause and not any remote cause. If the employee in the course of his employment has to be in a particular place and by -7- 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 causal 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."
7. From the evidence on record it thus emerges that the deceased reached Patharkandi and was compelled to halt there due to bandh. The deceased had to be in the particular spot at that particular moment in course of his employment and by reason of his employment, he met with untoward event or mishap or occurrence took place because he was there in course of his employment. The claimants established their burden. No other duties or burden is imposed on the claimants to prove and establish any further requirement. The claimants established the proximate cause of death of the deceased and also established the proximate connection between the employment and his injury which is the accident caused to the deceased at that particular spot in course of his employment thus resulting in his death. In our opinion the learned Commissioner rightly reached his conclusion and imposed liability on the employer under Section 3 of the Act."
Learned counsel for the appellant has thus submitted that impugned order may be set aside and the claimant may be given compensation.
Learned counsel for the respondent, Mr. Shresth Gautam assisted by Mr. Yogendra Yadav has opposed the prayer and has supported the finding recorded by the learned Presiding Officer. Learned counsel for the respondent has placed the First Information Report, which has been brought on record as annexure-1 lodged by wife of deceased, Maheshwar Mahto namely Shanti Devi. The informant has stated that her husband was working in Bokaro Steel Plant under SMS shop no.2 as Junior fitter having employment no.769151, as usual on 28.12.2010 at about 09.45 P.M. her husband was going to attend the night shift duty, he got down from the quarter and the informant was seeing him from the Balcony. As soon as her husband got down and sat over his motorcycle, two persons suddenly came from the eastern side on motorcycle and stop the motorcycle besides the motorcycle of her husband. One of the boy, who was a -8- pillion rider on another motorcycle got down and fired three rounds upon her husband due to which he fell down. Thereafter, he was brought to the hospital where the doctor has found him dead.
Learned counsel for the respondent has submitted that it is not a case where the person has died in course of working or in connection with the work assigned to him or in motor accident/Traffic accident in way to his office rather it is a personal vengeance of the parties, which led to the murder of the husband of the informant by unknown criminals.
Learned counsel for the respondent has submitted that as per N.J.C.S. Agreement dated 01.07.2014, which is in consonance of such agreement of the year 2006. The provisions are not changed, reliance was placed upon clause number 3.5.4.1d, according to which Employee's Compensation benefit is extended to injury cases causing death or permanent/ temporary disablement arising during journey from residence to place of work and back within one hour of the start or end of his duty hours provided that accident takes place on the normal route of journey to the place of work.
Learned counsel for the respondent has further submitted that it is not a case where the employee has lost his life, while in journey from his residence to work place or vice versa rather it is a case where some person inimical to the deceased has shot him because of their personal vengeance, which took the life of the husband of the informant, as such, the mishappening will not fall under the N.J.C.S. agreement, as such, the claimant is not entitled for any compensation. The learned Labour Court has rightly considered the same, while rejecting the claim application.
Learned counsel for the respondent, Mr. Shrestha Gautam has further relied upon a judgment passed by the Apex Court in the case of Regional Director, E.S.I. Corporation and Another Vs. Francis De Costa and Another (1996) 6 SCC, paras 7 and 8 of which are profitably quoted hereunder:-
"7. 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 Act. The words "accident ... arising out of ... his employment" indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.
8. The other words of limitation in sub-section (8) of Section 2 are "in the course of his employment". The dictionary meaning of "in the course of" is "during (in the course of time, as time goes by), while doing" (The Concise Oxford Dictionary, New Seventh -9- Edition). The dictionary meaning indicates that the accident must take place within or during the period of employment. If the employee's work-shift begins at 4.30 p.m., any accident before that time will not be "in the course of his employment". The journey to the factory may have been undertaken for working at the factory at 4.30 p.m. But this journey was certainly not in the course of employment. If 'employment' beings from the moment the employee sets out from his house for the factory, then even if the employee stumbles and falls down at the doorstep of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided."
Learned counsel for the respondent has emphasized his argument on the basis of the judgment that the deceased, Maheshwar Mahto has not died because of fall from the motorcycle or any traffic accident or any mishappening to him while going to office rather he was killed by a person, for which F.I.R. was lodged, after investigation charge sheet was submitted. Trial under Section 302 of the IPC commenced but even his wife had not supported the prosecution case, ultimately the case was acquitted in favour of the accused person as the prosecution has failed to prove the charge against the accused, as such, it is not a case which will come under the ambit of the accident as held by the Apex Court. It is a case of murder where the person has not been killed in connection to his job or work assigned rather it is a personal vengeance of the persons, which led to death of the husband of the claimant, for which Steel Authority of India cannot be fastened with any liability, which has rightly been done by the learned Labour Court.
Learned counsel for the respondent has also placed reliance upon another judgment in the case of Rita Devi V. New India Assurance Co. Ltd. (2000) 5 SCC 113, paragraph-10 of which is probability quoted hereunder:-
"10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."-10-
Learned counsel for the respondent has thus submitted that it is a murder, which can not be termed as an accident for which compensation can be saddled against the employer rather this murder has nothing to do with the employer and it is a dispute between two private parties for which employer cannot be saddled with any liability.
Heard, learned counsel for the appellant and learned counsel for the respondent and perused the materials brought on record as well as judgment placed on behalf of both the sides. From perusal of the same, it appears that the husband of the claimant lost his life, because of act committed by some persons due to personal vengeance but was not related with the work assigned to the deceased or in continuance of his employment with the employer. The clause 3.5.4.1d of the N.J.C.S. agreement contemplate a situation of Traffic accident where a person died, while going to the office or coming from the office but in the present case the deceased has lost his life not in a traffic accident rather he got down and sat on the motorcycle when some unknown person killed him because of personal vengeance. The act is not related with his employment, as such, employer cannot be fastened with the liability. The case is fully covered with the judgment passed by Apex Court in the case of Rita Devi (Supra) as well as in the case of Regional Director, E.S.I. Corporation and Another Vs. Francis De Costa and Another (supra).
Under the aforesaid circumstances, there is no illegality or perversity warranting any interference by this Court in the finding recorded by the learned Labour Court.
Accordingly, the finding recorded by the learned Labour Court requires no interference and the Miscellaneous Appeal preferred by the appellant/claimant is hereby dismissed.
(Kailash Prasad Deo, J.) Jay/