Chattisgarh High Court
South Eastern Coalfields Ltd. And Ors. vs Smt. Shyama Nagvanshi And Ors. on 11 December, 2007
Equivalent citations: 2008(2)MPHT48(CG)
Author: D.R. Deshmukh
Bench: D.R. Deshmukh
ORDER D.R. Deshmukh, J.
1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 (henceforth 'the Act, 1923') arises out of an order dated 19-4-1996 passed by the Commissioner for Workmen's Compensation, Labour Court, Ambikapur (henceforth 'the Commissioner') in Case No. 7/94 W.C.F., whereby compensation of Rs. 72,548/- was awarded to the respondents being the legal representatives of the deceased Ranjit Singh and against the appellant No. 1/ employer.
2. It is not in dispute in this appeal that Ranjit Singh was an employee of the appellant No. 1 and was posted as Grade-C Operator in Churcha Colliery. He was transferred to Katkona Colliery by order dated 14-2-1991 (Annexure A).
3. The respondents/claimants alleged in their application for compensation that Ranjit Singh went to join at Katkona Colliery on 4-5-1991 pursuant to the order of transfer passed by the appellants on 14-2-1991. Ranjit Singh died after prolonged hospitalisation on 18-5-1991 after receiving serious injuries in road accident on 4-5-1991 while he was returning from Katkona Colliery after making an application Exh. P-1 for being taken on duty. The appellants resisted the said application on the ground that pursuant to order of transfer dated 14-2-1991 received by him on 29-4-1991, Ranjit Singh did not join duty at Katkona Colliery and death of Ranjit Singh was as a result of a road accident and did not arise out of and in the course of his employment.
4. The respondent No. I/claimant No. 1 examined herself and also adduced the evidence of Mohd. Amin Khan. On the other hand, the appellants examined the Provident Fund Clerk, Bharatlal Verma and Deputy Personal Manager, A.D.P. Rao. The Commissioner recorded a finding that death of Ranjit Singh on 4-5-1991 occurred the course of and arising out of his employment under the appellants and awarded compensation of Rs. 72,548/-.
5. Learned Counsel for the appellants did not assail the quantum of compensation awarded by the Commissioner and urged solely that Ranjit Singh having been relieved on 29-4-1991 pursuant to the order of transfer dated 14-2-1991 to Katkona Colliery did not join his duty and, therefore, his death on 4-5-1991 in a road accident had no nexus with his employment under the appellants. Learned Counsel for the appellants placed reliance on Regional Director, ESI Corporation and Anr. v. Francis De Costa and Anr. , a case under the Employees State Insurance Act, 1948 (henceforth 'the Act, 1948'), where the employee had, while going to his place of employment met with an accident at a place which was about one kilometer away from the factory and about 15 minutes prior to commencement of his duty shift. It was held that the injury suffered by the employee did not arise in any way out of his employment. Learned Counsel for the appellants argued that Section 2(c) of the Act, 1948 is in pari materia with Section 3(1) of the Act, 1923 because both the Sections used the words "arising out of and in the course of his employment" and, therefore, the decision applies to this case with full force.
6. On the other hand, Shri A.K. Prasad, learned Counsel for the respondents/claimants urged that Exh. P-1 revealed that Ranjit Singh had reported before the Deputy Chief Mining Engineer, Katkona Colliery on 4-5-1991 and had sought permission for joining duty and therefore, even though he died in a motor accident occurring on way while returning from Katkona Colliery after submitting an application Exh. P-1 for being taken on duty, the Commissioner was right in holding that death of Ranjit Singh arose out of and in the course of his employment under the appellants.
7. The following substantial question of law arises for determination:
Whether the death of deceased Ranjit Singh on 4-5-1991 due to motor accident can be accepted as death by accident arising out of and in the course of his employment ?
8. Having considered rival contentions, I have perused the impugned award as also the record.
9. Section 3(1) of the Act, 1923 reads as under:
3. Employer's liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter....
10. The Act, 1923 was enacted to provide for payment by certain classes of employers to workmen for compensation against injury by accident. The term 'accidental injury' has not been defined under the Act. The liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. For constituting liability of the employer to pay compensation under the charging provision contained in Section 3 of the Act, 1923 the claimants are required to establish the following:
(i) an injury must be caused to a workman;
(ii) such injury must have been caused by an accident; and
(iii) it arose out of or in the course of his employment.
11. In Regional Director, ESI Corporation and Anr. v. Francis De Costa and Anr. (supra), the Apex Court was dealing with a case where the respondent met with an accident while he was on his way to his employment. The accident occurred at a place which was about 1 kilometer away from the factory. The Apex Court held that it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment. The Apex Court referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig 1940 AC 190 : (1939) 4 All ER 558 HL, wherein it was held:
Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment - that is, directly or indirectly engaged on what he is employed to do - gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.
12. In Mackinnon, Mackenzie & Co. (P) Ltd. v. Ibrahim Muhammad Issak , the Apex Court held as under:
5. ...To come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. 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 causal 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.
13. In R. v. National Insurance Commissioner, Ex P Michael (1977) 1 WLR 109 : (1977) 2 All ER 420, Lord Denning observed as under:
Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something 'reasonably incidental' to his employment. But, if he has an accident on the way, it is well settled that it does not 'arise out of and in the course of his employment'. See Alderman v. Great Western Rly. Co. (1937) 2 All ER 408 : 1937 AC 454; Netherton v. Coles (1945) 1 All ER 227. Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely 'reasonably incidental' to his employment), nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment.
14. In Saurashtra Salt Mfg. Co. v. Bai Valu Raja AIR 1958 SC 881, S. Jafer Imam, J., speaking for the Court, held:
As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded.
It was further observed that:
It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends upto point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable.
15. Applying the said principles to the facts of the case, it is clear that Ranjit Singh was transferred from Churcha Colliery to Katkona Colliery vide order dated 14-2-1991 (Exh. D-3) further shows that he was relieved from Churcha Colliery on 29-4-1991. The record shows that Ranjit Singh had made an application for cancellation of his transfer on 12-3-1991. His application dated 4-5-1991 (Exh. P-1) further shows that on being relieved from Churcha Colliery on 29-4-1991 he had met the Deputy Chief Mining Engineer at Katkona Colliery on 30-4-1991 who had asked Ranjit Singh to meet him on 4-5-1991. Thereafter, on 4-5-1991, Ranjit Singh again met him and made an application (Exh. P-1) for taking him on duty. It is clear that till 4-5-1991 Ranjit Singh had not been accepted on duty at Katkona Colliery and had met with an accident on way while returning from Katkona Colliery. In the light of Section 2(c) of the Act, 1948 being in parimateria with Section 3(1) of the Act, 1923 and the law laid down by the Apex Court in Regional Director, ESI Corporation and Anr. v. Francis De Costa and Anr. (supra), I am of considered opinion that death of Ranjit Singh did not arise out of and in the course of his employment since he died an accidental death while returning from Katkona Colliery, after handing over an application (Exh. P-1) for permission to join duty. It was not shown that such accidental death occurred within the precincts of Katkona Colliery. Therefore, the Commissioner for Workmen's Compensation was in error in holding that death of Ranjit Singh by accident arose out of and in the course of employment with the appellants. Substantial question of law is answered in the negative.
16. In the result, the appeal is allowed.
17. The impugned order passed by the Commissioner is set aside. The appellants shall be entitled to refund of compensation deposited by it.