Chattisgarh High Court
Smt. Shanti Bai vs Shri Chhatrapal Chandrakar on 2 January, 2025
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1/9
2025:CGHC:264
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1705 of 2017
1. Smt. Shanti Bai Wd/o Late Ganpat Sahu, Aged About 42 Years
2. Sukhsagar S/o Late Ganpat Sahu, Aged About 28 Years
3. Smt. Fekan Bai Wd/o Late Shri Kartikram Sahu, Aged About 62 Years
All R/o Village Sirsida, Post Matwari, Tahsil Gunderdehi, District Durg,
Chhattisgarh.
... Appellants/
Claimants
versus
1. Shri Chhatrapal Chandrakar S/o Late Sakharam Chandrakar, Aged About 60
Years Permanent Address Village Sirsida, Post Matwari, Tahsil Gunderdehi,
District Durg, Chhattisgarh, Present Address Chhatrachaya Behind Durga
Mandir, House No. 652/11, Shankar Nagar Durg, Tahsil And District Durg,
Chhattisgarh
(Employer)
2. Rushendra Kumar S/o Ganpat Sahu, Aged About 25 Years R/o Village
Sirsida, Post Matwari, Tahsil Gunderdehi, District Durg, Chhattisgarh,
District : Durg, Chhattisgarh
3. Hemchand S/o Ganpat Sahu, Aged About 22 Years R/o Village Sirsida, Post
Matwari, Tahsil Gunderdehi, District Durg, Chhattisgarh
(Claimants)
... Respondents
For Appellants : Mr. Divyanand Patel, Advocate
For Respondent No. 1 : Mr. Harshal Chauhan, Advocate
PAWAN
KUMAR
Hon'ble Shri Parth Prateem Sahu, Judge JHA
ORDER ON BOARD Digitally
signed by
PAWAN
02/01/2025 KUMAR JHA
1. This miscellaneous appeal is filed under Section 30 of the Employees Compensation Act, 1923 (in the appeal mentioned Workmen's Compensation Act, 1923) (for short "Act of 1923") questioning the legality and sustainability 2/9 of the impugned award dated 11.09.2017 passed by Commissioner Employees Compensation Act cum Labour Court, Durg, District Durg, C.G. in case No. 98/W.C. Act/2011 Fatal, whereby the application seeking compensation under Section 10 of the Act of 1923 was dismissed.
2. Facts relevant for disposal of this appeal are that Ganpat Sahu husband of appellant No. 1, father of appellant No. 2 and son of appellant No. 3/ claimants suffered electric shock in the house of Respondent No. 1 and died. The accident was reported to concerned police station, he was taken to hospital, whereby the doctor declared him dead. Appellants along with Respondents No. 2 and 3/ claimants have filed an application under Section 10 of the Act of 1923 seeking compensation of amount of Rs. 11,50,000/- pleading therein that the deceased Ganpat Sahu was engaged as an employee by the respondent No. 1 for taking care of agricultural field as also the house and baadi. He was being paid 53 khandi of paddy and Rs. 3000/- per annum ie. about Rs. 45000/- p.a. On 21.07.2011, late Ganpat Sahu suffered electric shock during course of employment and he died. Apart from the income of the deceased as pleaded, claimants have sought further compensation on other heads and claimed total sum of Rs. 11,50,000/-.
3. The claim application seeking compensation was replied by the respondents and have denied the pleadings made therein. It was specifically denied that the deceased was kept as an employee by the non-applicant/ respondent No.
1. It was further pleaded that he was having agricultural field at village Sirsida, Tahsil Gunderdehi, District Durg, C.G. but the agricultural filed recorded in the name of non-applicant/ Respondent No. 1 was given on lease to late Ganpat Sahu.
4. Learned Commissioner based on the pleadings made in the claim application has formulated as many as five issues for consideration including the issue that whether the death of late Ganpat Sahu on 21.07.2011 was arising out of and in the course of his employment and has decided the issue in negative. 3/9 The Commissioner has recorded a finding that the deceased after doing the agricultural work has returned back to house and suffered electric shock in the home ie., after employment work.
5. Learned counsel for appellant would submit that the learned Commissioner erred in not considering and appreciating the evidence of claimants brought on record. Referring to the evidence of Shanti Bai Wd/o Late Ganpat Sahu, Sukhsagar son of late Ganpat Sahu, Vishram Sahu, Lakhan Lal Sahu he argued that all the witnesses have categorically stated in their evidence that the deceased was an employee of Respondent No. 1. He also argued that apart from doing work in the agricultural filed he is also supposed to look after the house and baadi of Respondent No. 1. At the time of accident, he was taking are of house and baadi. At the time of starting of tullu water pump suffered electric shock and died. Learned Commissioner erred in arriving at a finding that the accident occurred after coming back to house after employment/work which is erroneous finding. He contended that other issues have been considered based on the decision on Issue No. 1 and if the Issue No. 1 is decided in affirmative, the claimants are entitled for compensation as prayed for.
6. Learned counsel for Respondent No. 1 vehemently opposes the submission of learned counsel for appellant and supports the impugned award passed by learned Commissioner, Employees Compensation Act-cum-Labour Court. He contended that learned Commissioner upon appreciation of pleadings and evidence of claimants has recorded a categorical fining that the accident took place in the house and further considered the evidence of AW-3 and AW-4, wherein they have admitted that the house was given to deceased for his residence and however the accident occurred after working hours and therefore death of late Ganpat Sahu is not caused by an accident arising out of and in the course of his employment. There is no error in such a finding recorded by learned Commissioner. He also contended that learned 4/9 Commissioner has also taken note of the affidavit filed by witnesses of the appellants wherein there is no such averment in the affidavit that the deceased was also engaged in taking care of the house and baadi. There is no evidence in this regard.
7. I have heard learned counsel for the parties and also perused the record of the claim case.
8. Perusal of pleadings made in the application under Section 10 of the Act of 1923 would show that the applicants have pleaded that deceased Ganpat Sahu was engaged as labourer for last 15-20 years for doing regular work in the agricultural field of non-applicant/ Respondent No. 1 and also to take care of house and baadi of Respondent No. 1. In support of claim application, claimants have examined Shanti Bai wd/o late Ganpat Sahu as AW-1, Sukhsagar s/o late Ganpat Sahu as AW-2, Vishram Sahu as AW-3 and Lakhan Lal Sahu as AW-4 and also produced documents Morgue Intimation Report (Ext. P-1), Naksha Panchayatnama (Ext. P-2), Application for post- mortem (Ext. P-3), Post-mortem report (Ext. P-4), Notice to Resp. No. 1 (Ext. P-5 & P-6), Death Certificate (Ext. P-7) and Notice of compensation to Respondent No. 1 through Advocate (Ext.P-8). Non-applicant examined himself as NAW-1. Shanti Bai wd/o late Ganpat Sahu in her affidavit filed under Order 18 Rule 4 CPC (examination in-chief) has stated that her husband was engaged as labourer by non-applicant/ Respondent no. 1 and was doing the work of agricultural labourer and also taking care of house and baadi. He was engaged as labourer in the year 2011 for 53 khandi paddy and Rs. 3000/- p.a., the value of paddy and the amount comes to Rs. 45000/- per annum. In her cross examination, she stated that the deceased alone was engaged as labourer for maintaining 20 acres of agricultural land, no other person was engaged by non-applicant/ Respondent No. 1. She has also admitted in her cross examination that the accident occurred in the house and not in the agricultural field.
5/9
9. AW-2, Sukhsagar Sahu s/o late Ganpat Sahu in his cross examination has admitted that he is not aware as to the agricultural land was given on lease or his father was engaged as labourer. However, he further stated that the agricultural land was not given on lease, he was paid annual wages.
10. AW-3, Vishram Sahu in the affidavit filed under Order 18 Rule 4 CPC has stated that the deceased was engaged as labourer for doing agricultural activities by the non-applicant/ Respondent No. 1. In cross examination, this witness has stated that late Ganpat Sahu suffered electric shock when he was in the house of non-applicant, the house was given to late Ganpat Sahu for his residence by non-applicant/ Respondent No. 1. He also admitted that in his affidavit he has not stated that late Ganpat Sahu was engaged for taking care of his house. Similar is the evidence of AW-4, Lakhan Lal Sahu.
11. Non-applicant/ Respondent No. 1 examined himself as NAW-1, in his evidence he stated that he has 18 acres of land in his name, he does not do any agricultural activity by himself or through engaged labourer. The agricultural field was given on lease to late Ganpat Sahu. In cross examination, this witness denied the suggestion that late Ganpat Sahu was engaged as labourer for taking care of agricultural field and the house.
12. Seeking compensation under the Act of 1923, it is sine quo non for the claimants to prove that the deceased met with an accident arising out of and in the course of his employment.
13. This appeal was admitted on following substantial questions of law.
"(i) Whether the death of deceased was arising out of an accident which arose out and in the course of the employment?
(ii) Whether the deceased would fall within the ambit of an employee/workman under the Employees Compensation Act?"
14. Learned Commissioner for employees compensation has recorded a finding that the death of deceased is after working hours of employment, in the house and decided the Issue No. 1 in negative. Learned Commissioner has also 6/9 recorded the death of deceased is after returning to house. On two grounds, the claim of claimants seeking compensation was rejected.
15. Chapter II of the Act of 1923 deals with employees compensation. Section 3 provides for employer's liability for compensation. Provision under Section 3(1) is extracted below for ready reference.
"3. Employer's liability for compensation.- (1) If personal injury is caused to an employee 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. ..."
16. Perusal of aforementioned provision would show that the liability for making payment of compensation upon employer is only if personal injury is caused to an employee by accident arising out of and in the course of employment. It is for the claimants/ appellants to prove that the accident or accidental death of an employee is arising out of and in the course of employment.
17. Hon'ble Supreme Court in the case of Mackinnon Machenzie & Co. (P) Ltd. vs. Ibrahim Mahmmed Issak reported in 1969 (2) SCC 607 has discussed the point that the accident must arise both out of and in the course of employment. Paragraph 5 of the said decision is extracted below:
"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, 7/9 unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley [1917 AC 352] Lord Sumner laid down the following test for determining whether an accident "arose out of the employment":
"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 this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yes, 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 the workman 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."
18. In the case of Daya Kishan Joshi and another vs. Dynemech Systems Pvt. Ltd. reported in (2018) 11 SCC 642, Hon'ble Supreme Court has considered the words used in sub-section 3(1) "arising out of" and "in course of employment" and observed thus:
"8. The words "arising out of" and "in the course of employment" are in fact two different phrases and have been understood as such. If the accident had occurred on account of a risk which is an incident of employment, the claim shall succeed unless, of course, the workman had exposed himself to an added peril by his own imprudent act. The phrase "in the course of employment" suggests that the injury must be caused during the currency of employment, whereas the expression "out of employment"
conveys the idea that there must be a causal connection between the employment and the injury caused to the workman as a result of the accident. Prima facie, while deciding the issue on hand, there is no material on record to show that the deceased workman had exposed himself to added peril by his own imprudent act."
19. From the provision of Section 3 of the Act of 1923 as also the aforementioned decisions of Hon'ble Supreme Court, to succeed in the application filed under 8/9 Section 10 of the Act of 1923, it is for the claimants to prove that the accident was arising out of and in the course of employment and further that there must be casual connection between employment and injury caused by the accident.
20. In the case of Mackinnon Machenzie & Co. (P) Ltd. (supra), Hon'ble Supreme Court further held that the burden of prove was upon the employee/ workman to prove that the accident arose out of as well as during course of employment and held as under:
"6. 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 be such as would induce a reasonable man to draw it. Lord Birkenhead, L.C., in Lancaster v. Blackwell Colliery Co. Ltd. [ 1918 WC Rep 345] observed:
"If the facts which are proved give rise to conflicting inferences of equal degrees of 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."
21. In the case at hand, the evidences available on record, as discussed above, the independent witnesses examined by claimants AW-3, Vishram Sahu and AW-4 Lakhan Lal Sahu, in their cross examination have admitted that when late Ganpat Sahu was in the house of non-applicant/ Respondent No. 1, he 9/9 suffered electric shock. They have also admitted that the house in which late Ganpat Sahu was residing was given for his residence and occasionally he used to do labourer work. In the affidavit, they have not stated that late Ganpat Sahu was also engaged for house work also. AW-1, widow of late Ganpat Sahu, in her cross examination in paragraph-2 admitted that the tullu pump which is installed in the house is for domestic use, the accident is about 6:00 pm. She also admitted that, her husband went to agricultural field in the morning and came to house in the evening and thereafter accident occurred. She also admitted that her husband has not suffered electric shock in the agricultural field but in the house.
22. From the aforementioned evidence, there is no admissible piece of evidence that late Ganpat Sahu suffered electric shock arising out of and in the course of employment. Appellants failed to discharge their burden of proof that the accident occurred was arising out of and in the course of employment.
23. From the above discussion, the substantial question of law No. 1 formulated by this Court is decided in negative.
24. With respect to question No. 2 of the finding recorded by the Commissioner, Employees Compensation that the accident occurred after the working hours of employment and occurred in the house and the finding given on substantial question of law No. 1, I do not find it appropriate to deal with second substantial question of law on merits.
25. For the foregoing discussion, I do not find any merit in this appeal and accordingly it is dismissed.
Sd/-
(Parth Prateem Sahu)
pwn JUDGE