Gujarat High Court
M.A. Pathan Wd/O A.S. Pathan And Ors. vs Employees State Insurance Corporation on 18 April, 1994
Equivalent citations: 1995ACJ308
JUDGMENT Shethna, J.
1. The appellants have challenged in this Appeal the impugned judgment and order dated 13-7-1993 passed by the E.S.I. Court, Ahmedabad dismissing the Application (E.S.I.) No. 45 of 1990. Appellant No. 1 is the widow of Ahemadkhan and appellants Nos. 2 to 6 are the minor children of the deceased.
2. The deceased Ahemadkhan was working as a Labourer in New Manekchowk Textile Mills Ltd. On 4-4-1990 he attended the duty at 3-30 p.m. to 12 midnight. While returning from his duty in the midnight hours he was assaulted by the mob during the communal riots, which took place in Ahmedabad on that day and he was stabbed and because of that he died there and then. Ibrahim Abdulla Exh. 12, co-worker of the deceased was also going with him. He witnessed the incident but he managed to escape. F.I.R. was lodged on that very day of the incident by unarmed Head Constable Mr. Pandya before the police and the inquest Panchnama was also prepared on that very day. Maherunisha, widow of deceased Ahemadkhan is examined at Exh. 11. She has also stated in her evidence that while returning from duty her husband was stabbed at about 12.20 hours of the midnight and died. On 18-6-1990 Labour Officer of the Mill-Company addressed a letter to the Manager of respondent E.S.I. Corporation in which also it has been stated that while the deceased was going home after completing his duty in the 2nd shift on the way of his house he was stabbed by the mob, for which the complaint was also lodged. Prior to this also, the Mill-Company reported to the E.S.I. Corporation on 29-5-1990 about the incident. On the incident report received by the Manager of the Local Office of Ahmedabad City, its Manager submitted a report on 25-6-1990 and recommended the case for acceptance of employment injury in the light of the facts mentioned in his report. Inspite of this recommendation, the respondent-Corporation did not accept the case and refused to grant compensation to the widow and the minor children of the deceased. Hence they have filed Application (E.S.I.) No. 45 of 1990 before the E.S.I. Court, Ahmedabad on 12-7-1990 for getting the benefit for which they are entitled under the Employees' State Insurance Act, 1948 (for short 'the Act'). On behalf of the applicants following judgments were cited :
(1) Sadgunaben v. E.S.I. Corporation, 1981 GLR 773.
(2) Union of India v. Shantaben, 1985 ACJ (Guj.) 818.
(3) Bhagubhai v. General Manager, Central Railway, Bombay, 1954 II LLJ (Bom.) 403 : AIR 1955 Bom. 105.
(4) Verkeyachan v. Thomman, 1979 ACJ (Kerala) 319.
And it was urged that the incident took place in the course of the employment and, therefore, the applicants are entitled for the benefit under the Act. As against this, the respondent- Corporation has relied upon the Full Bench judgment of the Allahabad High Court in the case of Abida Khatun v. G.M.D.L., Varanasi, reported in 1973 LIC 666 and it was submitted that there was no evidence that the deceased workman was murdered while returning from duty and, therefore, the applicants are not entitled to get any damages under the Act. After appreciating the oral as well as documentary evidence on record, the learned trial Judge has come to the conclusion that the applicants failed to prove that the deceased Ahemadkhan died due to the injuries received by him during the course of the employment and, therefore, dismissed the Application. Hence this Appeal.
3. Mrs. Gupta for the appellants vehemently urged that the learned Judge committed a grave error in dismissing the Application of the appellants on totally erroneous grounds, which are narrated in para 18 of the Judgment. She submitted that the learned Judge has wrongly not relied upon the direct binding decision of this Court as well as of the Bombay High Court, which are directly in favour of the appellants. She submitted that it was not in dispute that the deceased Ahemadkhan died while he was returning from his duty due to the injuries received by him on that night in the assault made by the mob in the communal riots. There is ample evidence on the record to support the oral evidence of Maherunisha-widow of the deceased on this point. F.I.R. which was lodged immediately after the occurrence, the Inquest Panchanama prepared immediately after lodging of F.I.R. and the evidence of eye witness Ibrahim Abdulla, Exh. 12 would go to show that the deceased was on his way to home and while returning from his duty he was stabbed by the mob and died just at a short distance from the Mill. She, therefore, submitted that the present case clearly falls under the definition of Employment Injury, which is defined under Section 2(8) of the Act and the learned Judge ought to have drawn presumption under Section 51A of the Act that the incident took place during the course of employment. There is lot of substance in the submission made by Mrs. Gupta. In the case of Sadgunaben (supra) the Division Bench of this Court held that, "In order to claim the benefits under the Employees' State Insurance Act. particularly sub-section (6A) of Section 2 it is not considered essential to establish that the accident occurred on the very precincts of the factory premises. The place of accident need not necessarily be located within the limits of the factory premises so long as the place of accident falls within a zone which can be nationally deemed to be the zone of the factory for the purpose of the Act by recourse to the theory of notional extension which evidently had been evolved in order to do social justice as also to do substantial justice to the workman for whose amelioration the benevolent legislation partaking of the character of social insurance has been enacted.
(i) As a rule, 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; (ii) Notwithstanding the aforesaid rule, it is now settled position in law that the said proposition (i) is subject to a rider, namely, that it is subject to the theory of notional extension of the employers' premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work; (iii) notional extension theory can be made recourse to in order to extend in both 'time and place', in a reasonable manner, in order to ascertain whether an accident to a workman be regarded as in the course of employment though he had not actually reached his employers' premises; (iv) Facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of employment of the workman keeping in view the theory of notional extension. Once the theory of notional extension is properly applied to the fact situation pertaining to a particular accident in the peculiar facts and circumstances of that case and it is held that the accident occurred within the areas falling within the notional extension theory, dependents of the employee should be entitled to suceed.' In that case the employee concerned had left his house 40 minutes before reporting time in order to report for work at the factory. He was actually waiting at the bus stop from where the bus should have carried him to the factory. It was not known exactly what was the distance between the bus stop and the factory. But the formula regarding whether or not the place where the accident occurred is located within the notional extension zone or not is an elastic and flexible formula and accordingly the same was applied in a purposeful manner. Therefore, this Court held that in view of Section 51A of the Act a liberal approach is required to be made in regard to case which do not fall within Section 51C to which notional extension theory requires to be applied having regard to law.
4. Present case is a better case wherein there is direct evidence of Ibrahim Abdulla who was has stated that when he and another workman Ahemadkhan were going from the duty, the mob attacked them in which the deceased died. Therefore, I am of the view that the present case was squarely covered by the judgment of this Court in Sadgunaben's case (supra). In the case of Bhagubhai (supra) the deceased was working as Mukadam on Kurla Railway Station and he was staying in Railway quarters near Kurla Railway Station. When he was going for his duty at that time he was assaulted by some unknown persons and murdered. In that case the Bombay High Court has held that there must be a casual 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 and the cause contemplated is the proximate cause and not any remote cause. It has been further held that, "It is now well settled that the fact the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him, the peril must be incidental to the employment. It is also clear that he must not by his own act add to the peril or extend the peril. But, if the peril which he faces has nothing to do with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril a casual connection is established between the employment and the accident." After observing the aforesaid, the Bombay High Court has held that, "In out opinion, once the applicant had established that the deceased was at a particular place and he was there because he had to be there by reason of his employment and he further establishes that because he was there he met with an accident, he had discharged the burden which the law places upon him. The law does not place an additional burden upon the applicant to prove that the peril which the employee faced and the accident which arose because of that peril was not personal to him but was shared by all the employees or the members of public". The facts of present case are almost identical to the case of Bombay High Court. The only difference is that in this case Ahemadkhan was stabbed when he was returning from duty. Thus, this case is also squarely covered by the Bombay High Court decision in Bhagubhai's case (supra.) Two other decisions are cited, one of this Court (1985 ACJ. (Guj.) 818) and another of Kerala High Court (1979 ACJ (Kerala) 319). However, the same are not considered in detail as in those cases the workmen died when they were actually on duty and in the place of employment. However, in my opinion, both the above judgments directly apply to the facts of this case and the learned Judge ought to have relied upon the same and granted the Application.
5. However, Mr. Thaker for the Corporation vehemently submitted that the learned Judge has rightly rejected the Application and not relied upon the aforesaid two cases of this Court as well as of Bombay High Court. He referred to the Full Bench judgment of the Allahabad High Court in the case of Abida Khatun (supra) and submitted that Allahabad High Court has relied upon the judgment of the Supreme Court in the case of M. Mackenzie v. I. M. Issak, reported in 1970 Lab. IC 1413 : AIR 1970 SC 1906 for dismissing the Application of the appellant. He is a majority decision. In that case, it has been held that 'There was absolutely no evidence as to who caused the murder and what was the notice behind it.' In that case it was not known that there was any risk which was ordinarily inherent in the discharge of the duties of the deceased and it was also not established that the workman was exposed to some special risk at the place where the accident took place. It is also true that for arriving at the aforesaid conclusion they relied upon the judgment of the Supreme Court in the case of M. Mackenzie (supra). That was case of the missing seaman employed as a deck-hand. There was nothing on record to show that the man was in fact dead, if any, was not caused in the course of the employment, that in any event the death could not be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with a suicidal death than with an accidental death. On facts and evidence of that causal the learned trial Judge held that the applicant failed to prove that the deceased died or that his death was due to an accident arising out of his employment, which was challenged in Appeal before the High Court. The High Court allowed the Appeal and reversed the judgment of the learned trial Judge and granted the application for compensation. That judgment of the High Court was challenged before the Supreme Court in Appeal by special leave. The Supreme Court held that the trial Judge did not commit any error in law in reaching the conclusion and the High Court was not justified in reversing it and, therefore, allowed the Appeal and set aside the judgment of the High Court.
6. Thus, the facts stated above are totally different. In that case before the Supreme Court, there was no evidence either regarding the death of the workman or the death of the workman due to an accident arising out of his employment. In the present case, there is voluminous evidence, which has been discussed above, regarding the death and also regarding the death which took place due to accident arising out of the employment. Therefore, the submission made by Mr. Thaker cannot be accepted. In fact, in Mackenzie's case (supra) the Supreme Court has observed as under :
"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". There must be a casual relationship between the accident and the employment. 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."
In that case the Supreme Court has further observed that :
"In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. It may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess, on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it".
It is very strange that though the learned Judges has referred to and also discussed the aforesaid two judgments of this Court as well as Bombay High Court in his judgment and also discussed the judgment of Allahabad High Court, in para 18 of his judgment he found that deceased Ahemadkhan died in communal riots. He was not beaten by any employee of the Mill and he had not died inside the Mill, but he died on the public road. Therefore, he came to the conclusion that it cannot be said that Ahemadkhan died in the course of this employment, and on this he rejected the Application. Unfortunately, though the present case is squarely covered by two aforesaid judgment of this Court as well as Bombay High Court, the learned Judge not relied upon the same and thus committed an error in dismissing the Application for compensation of the applicants-appellants. Therefore, the impugned judgment and order passed by the learned Judge had to be set aside.
7. In view of the above discussion, this Appeal is allowed. The impugned judgment and order passed by the trial is set aside. E.S.I. Application No. 45 of 1990 filed by the applicants-appellants before the Employees' Insurance Court at Ahmedabad is allowed. The applicants-appellants are declared to be entitled for the dependency benefits under the Employees' State Insurance Act, 1948 and the respondent-Corporation shall make the payment to the appellants accordingly, within three months from the date of the receipt of this order. There shall be no order as to costs.
Copy of this writ to be sent down to the respondent-Corporation forthwith.
8. Appeal allowed.