Karnataka High Court
The Branch Manager, New India Assurance ... vs Siddappa And Ors. on 12 March, 2004
Equivalent citations: I(2005)ACC353, 2004ACJ1639, [2004(102)FLR697], ILR2004KAR3119, 2004(4)KARLJ150, 2004 LAB IC 1574, 2004 AIR - KANT. H. C. R. 1284, (2004) 102 FACLR 697, (2004) 106 FJR 229, 2004 LABLR 731, (2004) 2 CURLR 923, (2004) 4 KANT LJ 150, (2004) 2 LAB LN 1046, (2004) 3 ACJ 1639, (2004) 4 SCT 310, (2004) 3 TAC 108, (2005) 1 ACC 353
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
JUDGMENT Ajit J. Gunjal, J.
1. This appeal is by the insurer. According to Sri Seetharama Rao, learned Counsel appearing for the appellant, the following substantial questions of law arise for consideration:
(1) Whether the Commissioner had jurisdiction to entertain the claim when the death of Shivanna had not been caused due to an accident which occurred during the course and out of the employment?
(2) Whether the Commissioner was justified in supplanting the word accident to entertain the claim petition when the petition itself had mentioned it as an incident?
(3) Whether Commissioner was justified in ignoring the contents of the FIR and mahazar which had clearly shown that the cause of death was not an accident and it was a suicide?
2. This appeal is directed against the judgment and award passed by the Workmen's Compensation Commissioner, Davanagere in Case No. WCA.CR.141 of 2000, dated 30-3-2002. In this appeal, Mr. Seetharama Rao, learned Counsel for the appellant has raised various interesting points and a multi-corner attack is also made against the claim of compensation. The appeal v/as heard at great length. Since various important points are raised and with a view to appreciate the merit of the present appeal and challenge it, it is necessary to set out the relevant material facts.
The respondents herein who were claimants before the Commissioner are the parents, brothers and sister of deceased Shivanna. The claim petition would disclose that on 13-10-2000 at about 8-30 a.m. the deceased Shivanna who was working as Operator with respondent 8 in this appeal was found dead in a well. The said well is situate in the premises of the factory and the said incident/accident arose out of and in the course of employment resulting in the death of said Shivanna. The age of the deceased was 22 years at the relevant point of time when he met a premature death. He was working as Operator in the premises of the 8th respondent. He had been to work on 11-10-2000 and had informed the family members that he would be working late on 11th and 12th and would return only after completion of the work. It appears the body of said Shivanna was found in the well which was noticed by some of the workers on 13-10-2000 and immediately thereafter a complaint was lodged and a case was registered in UDR No. 96 of 2000. According to the claimants as the said Shivanna died during the course of the employment, they laid the present claim petition claiming compensation of Rs. 5 lakhs. They inter alia stated that the deceased was the only earning member of the family and in view of his untimely death the claimants have become destitutes as they were wholly dependent on his income for their livelihood. Claimants 5, 6 and 7 were minors arid they were being looked after by the deceased brother.
3. In pursuance of the notice issued, the insurer as well as the insured entered appearance and filed their objections to the claim petition. The statement of objections filed by the employer discloses that the deceased was indeed working for them as Operator and admitted the allegation that his body was found on 13-10-2000 at about 8-30 a.m. in the well which was situate in the factory premises. They further admitted that the incident had occurred arising out of and in the course of the employment resulting in his death. They further denied that the deceased was the only sole bread earner of the family and inter alia contended that in the event the Commissioner were to hold that the deceased died during the course of the employment and out of employment since the factory and its workers were insured with the second respondent i.e., the appellant, it was the bounden duty of the insurer to indemnify them. They further made a statement that an amount of Rs. 20,000/- was paid in accordance with the Companies Rules and Regulations and denied that the deceased was earning Rs. 3,000/- per month. The insurer objected to the claim petition generally denying all the averments made in the claim petition including that in the absence of any succession certificate or survivor certificate the claimants are not the legal heirs of the deceased Shivanna. They further denied that the deceased Shivanna was employed with respondent 1 and was discharging his duties as Operator and that he died on 13-10-2000 at about 8-30 a.m. According to them the death did not occur while he was discharging his duties of his employer. They denied that he was getting a salary of Rs. 3,000/- per month. The insurer also denied that the issue of policy to respondent 1 on the date of the alleged accident for covering the risk. They also reserved their right to file additional statement of objection if need arises. They further objected on the ground that there is no privity of contract subsisting between the parties inter se and the claim petition itself was not maintainable nor sustainable in law. They generally denied all the averments made in the petition.
4. The claimants in support of their claim examined respondent 1 who is the father of the deceased and through him they got marked Ex. P. 1-the UDR report, Ex. P. 2-the mahazar, Exs. P. 3 and P. 4-inquest report, Ex. P. 5-the employment certificate and Ex, P. 6-the salary certificate (Exs. P. 5 and P. 6 were marked with objections). In the testimonial evidence it is disclosed that the deceased was working with the first respondent i.e., Green Agro Park as Operator. He left his residence on 11-10-2000 stating that he is going for the work and that he would be working almost throughout the night. But, however, on 13-10-2000 while he had gone to answer the call of nature and while drawing water from the nearby well, he fell into the well and died due to drowning. A complaint was lodged in respect of this before the jurisdictional police who registered it as UDR. He has reiterated his stand stating that the deceased was earning Rs. 3,000/- and they were wholly dependent on him. Taking into consideration all the material on record, the Commissioner came to the conclusion that the accident had occurred during the course of the employment and it arose out of employment. He further determined the salary of the deceased at Rs. l,760/- and since the deceased was 22 years has awarded a sum of Rs. 1,94,805 with interest at 9% per annum. Thus, he found that the claimants are entitled to a total compensation (compensation plus interest) at Rs. 2,18,181/-. As stated earlier the insurer has challenged the said finding in this Court.
5. Sri Seetharama Rao, learned Counsel appearing for the appellant strenuously contended that the entire case as made out by the claimants is false. According to him, the claim does not come under Section 3 of the Workmen's Compensation Act. He further contends that nowhere in the claim petition it is stated that the death was due to the accident and it arose during the course of the employment or arising out of the employment. He has taken me through the application filed before the Commissioner for compensation. Mr. Seetharama Rao further contended that notwithstanding the fact that the well was in the factory premises and assuming that the deceased was working as operator, the claim petition itself was lacking in many details. He submitted that the finding recorded by the Commissioner is perverse. He submits that the Commissioner has made out a new case for the claimants. Sri Seetharama Rao further submits that there was no occasion for the deceased to go out during the course of the night and more so to go near the well. According to him the theory of deceased having gone out to answer the call of nature is a make believe and he could not have drowned himself by taking water from the well. He submits that it is not an accident but it is a suicide and said that the application filed by the claimants should not be entertained.
6. Mr. A.S. Boppanna, learned Counsel appearing for the employer submits that the deceased was working in the factory premises on 12-10-2000 and submitted that it is the insurance company which is liable to satisfy the award under appeal as they were insured with them. He reiterated the stand taken by them before the Commissioner.
7. Mr. Mahesh, learned Counsel for the claimants supported the order passed by the Commissioner. He submits that the Act being a beneficial legislation strict adherence to the pleadings need not be resorted to. He further submits that the mahazar as well as the inquest report would clearly indicate that deceased was found floating in the well while he was trying to draw water from the well when he had gone to answer the call of nature. He further submits that the inquest report itself records a finding that the deceased slipped into the well when he had gone to answer the call of nature and to draw water from the well. He submits that it is a hand-well. The learned Counsel for the claimants refuted the contention of the insurer that it was suicide on the ground that no such contention was taken at any point of time before the Commissioner. For the first time the theory of suicide is put into action in this Court. In view of the fact that no proper foundation is laid in the objection statement before the Commissioner, it was not open to the insurer at this point of time to raise a contention that it was a suicide and not an accident. He further submits that the compensation as awarded by the Commissioner is on sound principle and has taken into consideration the minimum wages as well as applied the proper factor under the schedule. He reiterates that the claimants being old parents and the other claimants being minor siblings of the deceased, the compensation awarded is just and reasonable and does not call for interference.
8. The words "arising out of and in the course of the employment", a notional extension thereof has been considered in any number of decisions of the Hon'ble Supreme Court as well as this Court and other High Courts. It is no doubt true that in order to succeed in an application for getting compensation under Section 3 of the Act the following points are required to be established:
(1) that the accident must arise out of and in the course of the workman's employment;
(2) there must be causal connection between the injury and the accident and the work done in the course of the employment;
(3) the workman has to say that while doing a part of his duty or incidental thereto it has resulted into an accident.
It is not necessary that the workman must be actually working at the time of the injury or the accident. Therefore, the three factors, that there must be injury which must be caused in an accident, it must be caused in the course of and out of the employment must be established.
9. To come within the purview of the Act the injury by an accident must arise out of and in the course of the employment. The words 'in the course of the employment' mean in the course of work which the workman is employed under it and which is incidental thereto, in short there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confining to mere nature of the employment. The said expression belongs to the employment such as the nature, its conditions, obligations and its incidents. In order to hold that the employer is liable to pay the compensation it is really not necessary to say that the injury in question occurred or was caused during the actual working hours or while doing the actual duties. It is a matter of common knowledge and understanding that the workman during the course of his duty will have to expose himself for visiting others, moving during office hours to take a cup of tea or for easing himself and doing other pursuits of life. It is to be seen that many such pursuits of life are required to be done during the course of the employment or during duty hours. If a workman sustains injury during the interval either in the factory premises or nearby place or while taking a cup of tea or any other pursuit to satisfy his personal requirement or things, it could be said to be part of the employment or such an act or activity would be connected with the concept of employment. This question fell for consideration in the case in General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes, while interpreting the words "accident arising out of and in the course of the employment", a notional extension of the employer's premises, came to the conclusion that there can be notional extension of the employer's premises.
10. In view of this, the undisputed facts in the present case would he that as on the date when the incident had occurred the deceased was on duty. He had gone out to answer the call of nature and while taking water from the well he slipped and fell down into the well and was drowned. Three things emerge from this: One is that he was on duty at that point of time; secondly, answering the call of nature during the course of employment was one of the exigencies of the employment and thirdly, there was a causal connection between the employment and the cause of death. In view of the factual aspect of the matter, as narrated in the claim petition as well as stated in the testimonial evidence of the first claimant, there cannot be any iota of doubt that the deceased died while he was on duty and the said accident arose and in the course of the employment.
11. Mr. Seetharama Rao has relied on a judgment of the Hon'ble Supreme Court in Mackinnon Mackenzie and Company Private Limited v. Ibrahim Mahommad Issak, . He submits that in identical circumstances the Hon'ble Supreme Court had an occasion to decide the question of "arising out of and in the course of the employment". In the said decision a seaman was employed in a ship on voyage. The seaman was last seen at a particular time near the deck of the ship and later he was found missing from the ship on voyage, the body of the seaman was not found in spite of the search made in the gulf, weather was not stormy on the night in question. The Hon'ble Supreme Court ruled that the death of the seaman did not arise out of and in the course of the employment and had negatived the said contention of the claimant in that case. Another aspect which weighed with the Hon'ble Supreme Court was that the seaman who was on voyage was advised to take rest on medical grounds. The Hon'ble Supreme Court further found that the medical log-book of the ship showed that on 13th December, 1961 deceased complained of pain in the chest and was therefore examined but nothing abnormal was detected clinically. The Medical Officer on board at the ship prescribed some tablets for the missing seaman and he reported fit for work on the next day. On 15th December, 1961, however, he complained of insomnia and pain in the chest for which the medical officer prescribed sedative tablets. The official log-book of the ship shows that on 16th December, 1961 when the ship was in the sea the missing seaman was seen near the bridge of the ship at about 2-30 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6-15 a.m. he was found missing and a search was undertaken. In view of these facts, the Hon'ble Supreme Court felt that since he was advised complete rest as he was suffering from insomnia and chest pain, the accident did not arise out of and during the course of the employment. In the same decision, the Hon'ble Supreme Court had an occasion to deal with certain decisions which unmistakably laid down certain circumstances under which it can be said that the accident had occurred arising out of and in the course of the employment. At para 5 the Hon'ble Supreme Court has held thus:
"In other words, there must be a causal relationship between the accident and 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".
Then in the same judgment at para 6, the Hon'ble Supreme Court has observed thus:
"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. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials 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 to draw it.
If the facts which are proved give rise to conflicting inferences of equal degrees or probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour".
(emphasis supplied) The question was considered by the House of Lords in Kerr or Lendrum v. Ayr Steam Shipping Company Limited, 1915 AC 217 : 84 LJ PC 1, to the following effect:
"Murder and suicide were negatived by the Arbitrator, who drew the inference that the deceased left his bunk, went on deck, and accidentally fell overboard and was drowned. He accordingly held that the accident arose out of and in the course of his employment as steward. The Court of Session reversed his decision on the ground that there was no evidence to support it. The House of Lords (Earl Loreburn, Lord Shaw of Dunfermline and Lord Parmoor, Lord Dunedin and Lord Atkinson dissenting), however, upheld the decision of the Arbitrator, on the ground that, although upon the evidence it was open to him to have taken a different view, his conclusion was such as a reasonable man could reach--
" 'I should state my main proposition thus', said Lord Shaw of Dunfermline, 'that we in this House are not considering whether we would have come to the same conclusion upon the facts stated as that at which the learned Arbitrator has arrived. Our duty is a very different, a strikingly different one. It is to consider whether the Arbitrator appointed to be the Judge of the facts, and having the advantage of hearing and seeing the witnesses, has come to a conclusion which could not have been reached by a reasonable man".
(emphasis supplied) Lord Parmoor said:
'I wish to express no opinion either way on the reasonableness of the finding in itself as long as it is a possible finding for a reasonable man'.
Whilst Earl Loreburn observed:
'that they should regard these awards in a very broad way and constantly remember that they were not the Tribunal to decide' ".
In Simpson v. L.M. and S. Railway Company, 1931 AC 851, 100 LJ PC 98, Lord Tomlin reviewed all the previous authorities and stated the principle as follows:
". . . . from these passages to which I have referred I think this rule may be deducted for application to that class of case which may be called unexplained accident cases namely, that where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment. . .".
12. There is no basis in the principle or in the wording of the section for the proposition that the workman should be engaged in some positive activity at the time of the accident and that the accident should be related to such activities; if such presence itself was attributable in discharge of his duty is enough to show that the accident arose out of his employment. An identical question fell for consideration in Karnataka State Construction Corporation Limited, Bangalore v. The United India Fire and General Insurance Company Limited and Ors., ILR 1981 Kar. 322 (DB). A Division Bench of this Court has clearly stated that the question when does an employment begin and when does it cease depends upon the facts of each case. But, Courts have agreed that the employment does not necessarily and when the "down tool" signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment.
The judgment of the Hon'ble Supreme Court, referred to above, was once again considered in State of Rajasthan v. Ram Prasad and Anr., 2001 ACJ 647, ( 2001 ) I LLJ 177 SC, ( 2001 ) 9 SCC 395, wherein in an identical circumstance, the Hon'ble Supreme Court has observed thus:
"The accident, it is stated, took place on account of lightning. The contention put forth on behalf of the appellant is that the mishap of death of Smt. Gita due to lightning is an act of God and, therefore, it is not liable to pay compensation. This contention has been rejected not only by the Commissioner for Workmen's Compensation but also by the learned Single Judge in appeal and thereafter by a Division Bench in a further appeal. The view taken is that the concept of the liability under the Act is wide enough to cover a case of this nature inasmuch as death had taken place arising as a result of accident in the course of employment. It is, no doubt true that accident must have a causal connection with the employment and arise out of it. If the workman is injured as a result of natural force such as lightning though in itself has no connection with employment, she can recover compensation by showing that such employment exposed her to such injury. In this case the finding is that the said Smt. Gita was working on the site and would not have been exposed to such hazard of lightning striking her had she not been working so".
13. The Act undoubtedly is a welfare legislation aimed to soothe the agony of a workman or his dependents who become incapacitated or dead on account of the injuries sustained by them during the course of the employment. The social legislation to care for his welfare finds emphatic expression on this welfare legislation. Therefore, an interpretation which would advance that salutary object and intendment has to be adopted. A strict and ritualistic adherence to the procedural formalities of a trial is neither necessary nor desirable in deciding the question of entitlement of the injured employees for compensation. A more realistic and less formal approach is called for from authorities functioning under this beneficial enactment. The Courts are not to defeat the very purpose of the enactment by adopting a totally negative approach to the claim which the claimants advanced before them. Many of the provisions of the statute point out to the need for absence of rigidity. The fact that the contention which is sought to be advanced by the insurer in this appeal neither any proper foundation is laid in the statement of objections nor has any evidence is led in this behalf. In the absence of any proper foundation and the evidence, the appellants at this point of time cannot be permitted to raise a contention that it was a case of suicide but not an accident. Even assuming that the insurer can raise such a contention on the basis of the evidence available, the insurer has miserably failed to drive home the point that it was a case of suicide. The very document on which they want to rely, that is, the inquest report and the spot panchanama would clearly disclose that deceased had gone there to answer the call of nature and was in the process of taking water from the well, admittedly which had happened during the course of the employment. In view of what is stated above, I do not think that the Commissioner was in error and the finding recorded by him that the incident arose and during the course of the employment is based on evidence and material on record.
14. Insofar as the compensation which is awarded to the claimants, to my mind, is based on sound principle and it does not call for any interference.
15. Consequently, the substantial questions of law which are sought to be raised by Mr. Seetharama Rao in this appeal, assuming that they arise, are answered against the insurer. Consequently, the appeal stands dismissed. No order as to costs.