Kerala High Court
The Manager vs Abdul Salim @ P.A. Salim on 3 July, 2009
Bench: R.Basant, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 125 of 2006()
1. THE MANAGER,
... Petitioner
Vs
1. ABDUL SALIM @ P.A. SALIM,
... Respondent
2. K.K. JOHNSON,
For Petitioner :SRI.M.JACOB MURICKAN
For Respondent :SRI.K.M.JAMALUDHEEN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :03/07/2009
O R D E R
C.R.
R. BASANT & C.T. RAVIKUMAR, JJ.
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M.F.A. (W.C.) NO. 125 OF 2006
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Dated this the 3rd day of July, 2009
JUDGMENT
Ravikumar, J.
Whether the felonious or flagitious act of foes leading to disablement of a workman can be construed as an 'accident' justiciable for the purpose of compensation under Section 22 of the Workmen's Compensation Act, 1923 and to hold the Insurance Company liable are the moot questions to be considered in this appeal.
2. The appellant was the second opposite party and the respondents herein were respectively the applicant and the first opposite party in W.C.C. No. 117 of 2003 on the file of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Thrissur. It was filed under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act") for compensation for the personal injuries sustained by the applicant allegedly during the course of his employment under the first opposite party/second respondent. The Commissioner, holding that the accident falls within the purview of the Act, directed the appellant herein to deposit an amount of Rs.1,19,342/- together with M.F.A.(W.C.)NO. 125/2006 2 interest at the rate of 12% per annum from 1.4.2002 till the date of deposit. Aggrieved by the said award dated 24.2.2006, this appeal is filed.
3. Before the Commissioner, the second respondent herein remained ex parte. The appellant appeared and filed a written statement. The applicant and one Dr. T.G. Gopinathan who issued Ext.A7 disability certificate in respect of the first respondent were examined respectively as AWs.1 and 2. Exts.A1 to A10 were marked on the side of the first respondent. Copy of the policy was marked as Ext.M1. Based on the rival pleadings, the following issues were formulated for consideration:
i. Whether the applicant was a workman as defined in the Act and whether there were employer-employee relationship between the first opposite party and the applicant? ii. Whether there is an accident arose out of an in the course of employment of applicant? iii.Whether there is any permanent disability and if so what is the percentage of his loss of earning capacity?
iv.The age and wage of the applicant at the time of accident?
v. Whether the applicant is entitled to get workmen's compensation and if so the quantum of compensation payable?
vi.Which of the opposite party is liable to pay compensation?"
4. The Commissioner answered the first two issues in the affirmative and in answer to issue No.3, it was found that the accident in M.F.A.(W.C.)NO. 125/2006 3 question incurred 40% permanent disability to the applicant. Upon finding that the applicant was aged 40 at the time of the accident and was earning a monthly income of Rs.3,600/-, the compensation payable under Section 4 of the Act was assessed at Rs.1,19,342/-. The appellant herein was held liable to pay the said compensation with interest.
5. Before us, arguments were confined only on the issues as to whether the injury sustained by the first respondent/applicant in the incident can be construed as an accident which arose out of and in the course of his employment under the second respondent and whether the appellant is liable to pay compensation based on the Insurance Policy issued as per the provisions of the Motor Vehicles Act. If that be so, in case of adverse findings on the said issues that would necessarily entail sustenance of the findings of the Commissioner in respect of all other issues as well. The facts relevant for deciding the aforesaid issues are as follows:
The first respondent was employed by the second respondent herein as a driver in his vehicle, a mini lorry, bearing Registration No.KL-8/B-
3848. On 1.4.2002 at about 8.30, while he was reversing the said vehicle after off loading the bricks at Varandarappilly, some people who were on inimical terms with him on account of his earlier action in felling down a M.F.A.(W.C.)NO. 125/2006 4 mango tree, intercepted the vehicle, pulled him out of it and trounced him with sticks. Consequently, he had sustained injuries including compound comminuted fracture tibia and fibula lower 1/3rd of right leg. It was in the said circumstances that the first respondent herein filed W.C.C. No.117 of 2003 claiming an amount of Rs.4,00,000/- as compensation for his permanent disability contending that he was then aged 40 years and was earning Rs.5,000/- as monthly wages.
6. Learned counsel for the appellant contended that the injuries sustained by the first respondent were not attributable to any motor accident and he had sustained them in an outrageous act of his adversaries. Therefore, it could not be construed as an accident, as contemplated under Section 3 of the Act and justiciable for the purpose of awarding compensation under Section 22 of the Act. It was contended that Ext.A10 charge sheet would go to show that the above mentioned injuries sustained by the first respondent were inflicted on him in an incident which was absolutely unconnected with his employment. Therefore, it was further contended that the said incident could not be considered as an accident that arose out of and in the course of his employment. Even if it would come under the term 'accident' for the purpose of the Act, the appellant could not be held liable to pay compensation under the Act as the M.F.A.(W.C.)NO. 125/2006 5 insurance policy was one issued under the provisions of the Motor Vehicles Act.
7. Per contra, it was contended by the learned counsel for the first respondent that the findings of the Commissioner relating to the aforesaid issues are just and legal. According to the counsel, the incident in which the first respondent had sustained injuries resulting in his disablement falls under the term 'accident' in view of the circumstances and evidence in the case and it had arisen out of and in the course of his employment. Since the vehicle involved in the case belonged to his employer, the second respondent and was covered by a policy issued by the appellant which was valid during the relevant point of time, the appellant is liable to pay compensation as ordered by the Commissioner, it was submitted.
8. In the light of the aforesaid rival contentions, the following questions crop up for consideration, viz., whether the flagitious attack on the first respondent/applicant by his foes can be considered as an 'accident' as contemplated under Section 3 of the Act justiciable for the purpose of awarding compensation under Section 22 of the Act and, if so, whether the appellant is liable to pay the compensation in terms of the award passed under the Act. Needless to say that an answer in the M.F.A.(W.C.)NO. 125/2006 6 affirmative on the first question alone would make consideration of the latter question necessary.
9. In order to be justiciable for the purpose of compensation under Section 22 of the Act, an incident occurred leading to the death or disablement of a workman must be an 'accident' as contemplated under Section 3 of the Act. A perusal of Section 3 of the Act reveals that the term 'accident' is qualified by the expression 'arising out of' and in the 'course of employment'. A scanning of the said expression would further reveal that the first phrase 'arising out of employment' carries with it the first ingredient, that the injury must have been one sustained as a result of some casual connection between the workman's employment and the injury sustained by him. In other words, there has to be proximity between his employment and the injury sustained and that it should not be one invited by putting himself exposed to danger in an unreasonable manner. The second phrase 'in the course of employment' carries the second ingredient, that the injury must have been one sustained within the currency of his employment. The evidence and circumstances in this case would undoubtedly lead to the irresistible conclusion that the first respondent would not have been present at the scene of occurrence, but for his engagement as a driver in the said vehicle. It is also not in dispute that M.F.A.(W.C.)NO. 125/2006 7 while reversing the vehicle after unloading the bricks, it was intercepted and the first respondent was pulled out of it and was beaten up severely by some persons. The mere fact that such a flagitious act was designed by some persons who are in inimical terms with him and they intended to inflict such injuries would not have and could not have any significance or consequence for the purpose of deciding the issue, so long as the injuries were not at all designed by the first respondent/applicant. There is absolutely no such attribution on the first respondent. It is a settled position that so long as the workman had no role in designing the incident which led to his death or disablement, the fact that the assailants designed and intended to inflict such injuries on such person cannot have any significance for the purpose of deciding whether the act in question is an accident, as contemplated under Section 3 of the Act. Viewing in that angle, the incident occurred on 1.4.2002 at about 8.30 p.m. in which the first respondent sustained the aforesaid injuries is an 'accident' as contemplated under Section 3 of the Act. We are fortified in our view by the decision of the Honourable Apex Court in Rita Devi v. New India Assurance C o. Ltd. 2000(2) K.L.T. 526 (SC) and the decisions of this Court in Varkeyachan v. Thoman 1979 K.L.T. 97, Mathew Joseph v. Johny Sunny, 1995(1) K.L.T. 501 and E.S.I. Corporation v. Chellappan, 2000(3) K.L.T. 419.
M.F.A.(W.C.)NO. 125/2006 8
10. We may also advert to the decisions dealing with the tests to determine whether the accident arose out of the workman's employment. The test laid down by Lord Sumner in Lancanshire and Yorkshire Railway v. Highley (1917 AC 352) is as hereunder:
"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the Statute, and it is generally of some real assistance. It is thus: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of this was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental to the employment or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury".
11. In the decision in Varkeyachan v. Thoman, 1979 K.L.T. 97, the claim was for the death of a workman on sustaining stab injuries at the gate of a saw mill wherein he was employed to do odd jobs from the M.F.A.(W.C.)NO. 125/2006 9 querulous workmen of the said saw mill. Accepting the test laid down by Lord Sumner in Lancanshire and Yorkshire Railway v. Highley (1917 AC 352) and approved by the Apex Court in M. Mackenzie v. I.M. Issak (A.I.R. 1970 SC 1906), it was held by this Court that it was the employment that obliged the concerned person to pass and repass through the area where the querulous workmen were assembled and, therefore, the accident must be considered as one that arose out of his employment. In more or less similar circumstances, this Court consistently held the incidents leading to the death/disablement of workmen as accident arising out of and in the course of the employment of the concerned workman: see the decisions in United India Insurance Co.Ltd. v. V. Philo, 1996(1) K.L.T. 423, E.S.I. Corporation v. Chellappan, 2000(3) K.L.T. 419 and National Insurance Co.Ltd. v. Lolakshi, 2009(1) K.L.T. 319 . Bearing in mind the tests to determine whether an accident arose out of and in the course of one's employment emerging from the said decisions, we may have to analyse the evidence and admitted facts in this case. As held earlier, the evidence and admitted facts undoubtedly suggest that the first respondent would not have been present at the scene of occurrence, but for his employment as the driver of the vehicle involved in the case. He was pulled out of the said vehicle while he was reversing the same after unloading the bricks. It is thus evident that on his own he did not engage M.F.A.(W.C.)NO. 125/2006 10 in any hazardous or dangerous activities and also he did not expose himself to any such situation in an unreasonable manner. He was engaged in his employment and it was while so that he was pulled out of the vehicle and was attacked. Applying the tests such as casual connection of the accident, reasonably incidental and notional extension emerging from the said decisions, it has to be held that the first respondent has succeeded in establishing his claim that the accident in question has arisen out of his employment. Further, the evidence and circumstances and their scanning in the light of the aforesaid decisions would oblige us to agree with the finding of the Commissioner that the accident had occurred in the course of employment of the first respondent under the second respondent. These are findings of facts supported by the First Information Report, charge sheet and oral evidence adduced. The employer viz. second respondent did not come forward to deny or disprove them. The appellant who contested the matter also failed to bring out anything to entail rejection of the claim of the first respondent.
12. Yet another contention was raised by the learned counsel for the appellant that since the insurance policy was issued as per the provisions of the Motor Vehicles Act, 1988, the appellant is not liable to pay compensation, even if the incident is considered as an 'accident', as M.F.A.(W.C.)NO. 125/2006 11 contemplated under Section 3 of the Act. According to us, the said contention is wholly unacceptable. Admittedly, the vehicle in question was validly insured with the appellant - Insurance Company during the relevant point of time, as is evident from Ext.M1 policy. Evidence in this case would undoubtedly show that the first respondent was driving the vehicle and it was while so that his adversaries intercepted it and pulled him out of it and inflicted the injuries. In such circumstances, the appellant cannot be heard to contend that the 'accident' in question had not occurred in a public place when the motor vehicle was under use. It is nobody's case that the first respondent got out of the vehicle and exposed himself to such nefarious activities of his adversaries or that it had occurred on account of his own imprudent and unreasonable behaviour. Use of the motor vehicle in connection with his employment is established from the facts that he went there only to unload the bricks and he was reversing the vehicle after such off loading. In this context of the aforesaid contention of the appellant, Sections 147 of the Motor Vehicles Act assumes relevance. Section 147 deals with the requirements of the policies and the limits of liabilities. The first proviso to sub-section (1) of Section 147 as also its sub-section (5) would make it beyond any doubt that an insurance company cannot legally contend that it is not liable to pay compensation for the bodily injury resulting into one's disablement M.F.A.(W.C.)NO. 125/2006 12 arising out of the Workmen's Compensation Act as the insurance policy is one issued under the provisions of the Motor Vehicles Act. In our view, the Commissioner has rightly awarded compensation as per the impugned award and directed the appellant to deposit the amount as awarded and hence, attack against the same on the above ground is also liable to fail.
13. We have already made clear that the findings on the aforesaid issues against the appellant would necessarily entail the sustenance of the findings of the Commissioner in respect of the other issues. Since we have found the aforesaid issues against the appellant, the award in question passed by the Commissioner in W.C.C. No.117 of 2003 is only to be upheld.
Accordingly, the appeal fails and it is dismissed. However, there is no order as to costs.
(R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.F.A.(W.C.)NO. 125/2006 13 C.R. R. BASANT & C.T. RAVIKUMAR, JJ.
M.F.A.(W.C.)NO.125/2006 JUDGMENT 3rd July, 2009 M.F.A.(W.C.)NO. 125/2006 14