F. A. No. 133 of 1983

27th January, 1992.

Petitioner Counsel: R. Rajan Pillai
Respondent Counsel: Rathi

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order passed by the Commissioner for Workmen's Compensation, Akola in Workmen's Compensation Application No. 1 of 1980, rejecting his claim vide judgment and order dated 25th March 1983.

2. The appellant Ramrao was working in the Indian Manufacturing Company. Akola i.e. the respondent concern. On 11th November 1979, while he was working on the machine, he met with an accident and sustained injuries to his two fingers of his left hand. Both the fingers were crushed in the machine. On the day of incident, his monthly salary was Rs. 675/-. After the incident, a notice of the incident was given to the respondent and also to the Factory Inspector. The Factory Inspector has visited the factory of the respondent and made investigation and advised the non-applicant to pay the compensation. But, in spite of this, the amount of compensation was not paid to him. Consequently, he was constrained to approach the Commissioner for Workmen's Compensation. Akola under section 4 of the Workmen's Compensation Act, claiming lump sum compensation amounting to Rs. 7,093.50/- for the loss of two fingers of his left hand.

3. The respondent resisted the claim of compensation on the various grounds. It is specifically submitted by the respondent that the appellant is not entitled to any compensation as he disobeyed the express orders displayed on the notice board. It is specifically submitted by the respondent in its written statement that the appellant/applicant was specifically instructed to operate the machine from the northern side. In spite of the specific instructions, the appellant/applicant has flouted the instructions and tried to operate the machine going towards southern side, where gear exists. The alleged incident which took place on 11-11-1979, had taken place at the southern side of the machine. In the factory, every worker of the factory, including the appellant/applicant was instructed not to go to the other side of the machine, as they are not required to attend the operation of the machine. Besides the specific instructions, the safety guard was fitted to the machine and the general instructions were issued to the workers including the appellant/applicant not to remove the safety guard. The safety guard on the concerned machine was fitted with bolt and in utter disregard of the instructions of the Management and in clear cut disobedience to the orders of the Management, the appellant has removed the safety guard. Thus, according to the respondent, the appellant flouted or disobeyed the written instructions and the notices and as such the respondent is not liable to pay any compensation to the worker, it being his negligence.

4. In order to appreciate the contention of the respondent, I will refer the relevant provision of section 3, as under :

"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 the compensation in accordance with the provisions of this Chapter :

Provided that the employer shall not be so liable in spite of any injury not resulting in the death caused by an accident which is directly attributable to the wilful disobedience to the Applicant to a order expressly given or to a rule expressly framed for the purpose of securing the safety of workman or the wilful removal or the disregard by the Applicant of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman".

5. To substantiate the claim, the appellant/applicant examined himself while the respondent Management examined Shri Vijay Kumar Pillay the Manager of the respondent concern as also Shri G. P. More-fitter of the respondent factory. Besides the oral evidence led by the parties, the Presiding Officer visited the spot and after inspection prepared the spot inspection note which is at Exh. 7.

6. It is not disputed even by thee appellant/applicant that the safety guard was fitted with nut-bolts and the notice board giving written instructions affixing the same on the wall in the premises. The appellant/worker also admitted in his evidence that he has not informed the Manager or Mechanic in writing that there was no safety guard to the machine at the time when the alleged incident had taken place. Even at the time of inspection, the Presiding Officer noticed that the written instructions Exh. 12 were affixed on the wall. Instruction No. 5 is very material for the purpose of this case. It was clearly displayed on the notice board that before the machine is started the worker should satisfy himself that the safety guards are affixed and if there are no safety guards. he should get it affixed by the mechanic and then start the machine. Shri Vijay Pillay-the Manager of the respondent concern has described the process of working in his evidence, whose evidence is supported by the evidence of Shri G. P. More-fitter who was working in the respondent concern. These two witnesses specifically deposed that there was a safety guard fitted to the machine where the appellant was working and alleged to have sustained injuries. At the time of the spot inspection, the Presiding Officer asked the appellant to show how he has operated the machine on the day of accident. Considering all the aspects, the learned Commissioner for Workmen's Compensation, has observed in para 13 that :

"The applicant by nature of his work could not have been at the place where the alleged accident has taken place. So it cannot be said that the injury as caused by accident arising out of and in the course of his employment".

He, therefore, specifically expressed that the applicant has wilfully disobeyed the express orders and rules framed for the purpose of securing the safety of the workmen and consequently there was a disregard by the workman of the safety guard.

7. Shri Pillai, the learned counsel for the appellant/applicant submitted that though it is observed by the trial Court, that the appellant has wilfully disobeyed the instructions of the respondent, it does not stand to reason as nobody on the earth can put his fingers deliberately in the machine and get them crushed. At the most, it can be said that in spite of the instructions the appellant was not diligent towards the instructions and while performing his duty, due to negligence, accident might have occurred. Accident ultimately is an accident as no one likes to become the victim deliberately. The learned counsel for the appellant further submitted that in respect of proviso to the section 3 of the Workmen's Compensation Act, there are pronouncements of the Hon'ble Supreme Court and various Courts to the effect that even if a worker is negligent or died or met with an accident even in his leisure time or at the place other than his usual working but in the course of his employment, the worker is entitled to the compensation from the employer. The learned counsel for the appellant attracted my attention to the following judicial pronouncements in support of his contention.

I) In the case of Shaik Jafarji Hiptullah Bhoy Gin and Press Factory, Amraoti vs. Shaik Ismail reported in AIR 1937 Nagpur 311, it has been observed :

"Employer is not exempt from making compensation even if accident is due to workman's negligence provided accident is in course of employment. Workman employed to pour oil on shaft in ginning factory - While oiling bevel wheel his hand coming in contact with machinery and losing thumb - Accident is in course of employment."

Further it is observed that :

"Under Workmen's Compensation Act no exemption is given for mere negligence or carelessness. The Act makes no exception in favour of serious and wilful misconduct, except in the shape of drunkenness and the like which it specifically mentions in the proviso to section 3. Consequently the test to determine employer's liability must always be whether the accident arose "out of and in the course of the employment", and whether the workman has added a peril to his employment to which the employer had given no sanction".

II) In the case of Padam Debi vs. Raghunath. reported in AIR (37) 1950 Orissa 207 (D.B.) it is observed that :

"Though the expression 'accident' in section 3 has not anywhere been defined it is well settled that it generally means some unexpected event happening without design even though there may be negligence on the part of the workman who suffers from it. Thus even if an accident is caused to a motor bus by the rash and negligent act of the driver in driving it at an excessive speed, it cannot be said that the dashing of the vehicle against a tree which caused the accident was brought about by any previous design or a wilful act on the part of the driver and hence once it is proved that the accident was caused in the course of his employment, the question of negligence, great or small is irrelevant".

III) In the case of Bhumngya Coal Co. Lid. vs. Sahebjan Mian and another reported in AIR 1956 Patna 299 (D.B.). their Lordships have considered the section 3 of the Workmen's Compensation Act and in respect of the wilful disobedience observed as follows :

"A man does a thing wilfully when he does it intentionally because he expects some benefit to himself, either some convenience or an easy way of doing a piece of work and so forth. Mere negligence of the worker cannot be regarded as wilful disobedience by the workman to an order expressly given. Contributory negligence on the part of the employee does not exonerate the employer from liability to compensate the employee if the accident could not have been avoided by the exercise of ordinary care and diligence.

However, the workman is not entitled for any compensation if he

added peril contemplates that if a workman while doing his master's work undertakes to do something which he is not ordinarily called upon to do and which involves extra danger he cannot hold his master liable for the risks arising therefrom. This doctrine, therefore, comes into play only when the workman is at the time of meeting the accident performing his duty."

IV) In the case of General Manager. B.E.S. T. Undertaking, Bombay vs. Mrs. Agnes reported in AIR 1964 S.C. 193, while considering the provisions of section 3(1) of the Workmen's Compensation Act, their Lordships, Per Majority observed :

"Under section 3(1) the injury mast be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end 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. The scope of such extension must necessarily depend on the circumstances of a given case. 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. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion.

It is manifest from the Standing Rules of B.E.S.T. Undertaking that the timings are of paramount importance in the day's work of bus driver. If he misses his car he will be punished. If he is late by more than one hour he will be marked absent for the day : and if he is absent for 3 days in a month, he will be taken out of the permanent list. Presumably to enable him to keep up punctuality and to discharge his onerous obligations, he is given the facility in his capacity as a driver to travel in any bus belonging to the Undertaking. Therefore, the right to travel in the bus in order to discharge his duties punctually and efficiently is a condition of his service. Bombay is a City of distances. The transport service practically covers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the schedule timings, for he has to traverse a long distance. But for this right, not only punctuality and timings cannot be maintained, but his efficiency will also suffer.

As the free transport is provided to the bus driver in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of this duty. He is not exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress to the factory are not of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshops, factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one. in the case of a City transport service, by analogy, the entire fleet of buses forming the service would be the "premises". When a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment".

V) In a case of Zubeda Bano and others vs. The Divisional Controller, Maharashtra State Road Transport Corporation. Nagpur and others. 1990(2) Mh.L.J. 685 = 1990 (1) CLR Bombay 465 (D.B. - Nagpur Bench) granted the compensation to the deceased Workman-Driver who sustained heart attack and collapsed while changing destination name board. It is held that his death arose out of and during the course of his employment as contemplated under section 3 of the Act and hence the death was compensable by the employer Corporation. It is held that the liability of the employer under the Act is conceptually quite different from the liability under the tort. In para 5, their Lordships further observed :

"Section 3 is the soul of the Act and it specifies the circumstances under which the employer is liable for workmen's compensation : Section 3(1) reads thus :

"3(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 :

Provided that the employer shall not be so liable -

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days.

(b) in respect of any injury not resulting in death, caused by an accident which is directly attributable to -

(i) the workman having been at the time thereof under influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen".

Three expressions used therein are material : (i) personal injury, (ii) accident and (iii) arising out of and in the course of employment. That death is a personal injury is beyond doubt. That death by heart-attack is an accident is now well established by series of judicial pronouncements made from time to time. That death in the instant case has taken place in the course of employment is obvious and fairly not disputed either before the Commissioner or before us. The controversy thus centres round the question as to what the expression "arising out of" connotes."

VI) in a case of Natwarsingh A. Chauhan vs. Niranjanbhai K. Shah. 1991 (1) CLR 957 Gujarat, granted compensation to the worker who sustained injuries during interval or leisure in or around the premises of the employer. It is held :

"In order to hold the employer liable for the payment of compensation it is not necessary to show that the injury in question occurred or caused during the actual duties. It is a matter of understanding that a workman, during the course of his duty hours, will have to excuse himself for a while for smoking, for visiting others, i.e. moving during recess and leisure time or for taking a cup of tea or coffee or for drinking water or for easing etc. for doing or attending normal pursuits of life. Many such normal pursuits of life are required to be done during the course of his duty hours. If a workman sustains injury during such interval, either in the factory premises or nearby place while taking a cup of tea or fetching water for drinking or any other reason for satisfying his personal requirements, or instincts, could it be said that that would not form a part of the period of employment or such an act or activity would be unconnected with the concept of employment? In other words, can be it contended that the injury sustained during the interval or leisure time in or around the premises of the employer, it would not be characterised as one arising out of and in the course of employment? The answer to this very simple question is given in negative by the learned Commissioner, whereas, in the facts of the present case and in the light of the catena of judgments the answer to the aforesaid question ought to be in positive".

8. In the case before me, it is not disputed that the appellant has met with an accident within the premises of the respondent and that too while working on the machine i.e. while doing the job which was entrusted to him. Therefore, considering the facts and circumstances of the case, the question of wilful disobedience as laid down in proviso (b)(ii) cannot exonerate the company from the liability as specified in the substantive part of section 3(1) of the Act. Further, as stated in item six of the elements specified above to come within section 3(1)(b)(ii) of the Act. the workman must be in wilful disobedience is not sufficient. Disobedience may be the result of forgetfulness or the result of impulse of the moment. Such would not be sufficient as the statute exempts the employer from liability only when the disobedience is wilful that is deliberate and intended. A man does a thing wilfully when he does it intentionally because he expects some benefit to himself either some convenience or an easy way of doing a piece of work and so forth. Mere negligence of the worker cannot be regarded as wilful disobedience by the workman to an order expressly given. By the expression "accident" generally means some unexpected event happening without design even though there may be negligence. To decide whether an occurrence is an accident, it must be regarded from the point of view of the workman who suffers from it, and if it is unexpected and without design on his part, it may be an accident. If the accident occurred and that too while doing the work in the employment of the respondent, the question of negligence, great or small is irrelevant. No amount of negligence in doing employment job can change the workmen into unemployment job.

9. Considering all the circumstances and the ratio laid down in the cases discussed supra, in my opinion too, the appellant met with an accident while performing his duty though not diligent manner but the facts remain that his two fingers of left hand have been crushed, still he is entitled to the compensation. In view of the discussion, the Judgment and order passed by the Commissioner for Workmen's Compensation Act, Akola are set aside.

10. There is no doubt that the instructions were pasted on the notice board in the interest of the workers, in spite of this it appears that the appellant/worker was not diligent and thereby due to his negligence he met with an accident and got crushed his two fingers of left hand. In view of the judicial pronouncements referred supra, it is obligatory on the part of the respondent to pay the compensation to his own worker i.e. the appellant/worker. The appellant/worker claimed the total compensation of Rs. 7,093/- as per the schedule. This fact has not been contravened by the learned counsel on behalf of the respondent, while supporting the findings of the Authority. Therefore, the appellant being entitled to the compensation as claimed, I direct the respondent to pay the compensation to the tune of Rs. 7,093.50/- to the appellant/worker. However, considering the facts and circumstances of the case, no interest and cost are awarded to the appellant.

11. With these directions, the appeal is allowed. Rule is made absolute.

Appeal allowed.