M.F.A. No.4002 of 2007

6th March, 2009

Petitioner Counsel: B. C. SEETHARAMARAO
Respondent Counsel: H. P. VEERABHADRASWAMY, N. R. GIRISH

Cases Cited:
Mallikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd., CDJ 2009 SC 257 [Para PARA4]
Premila Vs. Shaliwan, 2006(2) ACJ 890 [Para PARA5]

JUDGMENT

-K. SREEDHAR RAO, J.:- One Naganaika, driver of a lorry working under the 5th respondent, was engaged for loading sugarcane from Bannariamman Sugar Factory. After unloading the sugarcane at the factory, he was coming back to Chamarajanagar, on 31-10-2005. It was about 4.00 p.m. He got down to attend first call of nature. When the deceased was urinating near agricultural land, which was fenced with live-electric wire, came into contact resulting in the death of Naganaika due to electrocution.

2. The W. C. Commissioner had found that the death is in the course of and out of employment. The wife, parents and children of the deceased have been awarded compensation. The insurer of the lorry was directed to pay compensation.

3. The Insurer is in appeal. The following are the substantial question of law :

"i) Whether the death of Naganaika has occurred in the course of and out of employment ?

ii) Whether the insurer is liable to pay the compensation ?"

4. The counsel for the appellant has relied on the ruling of the Supreme Court in the case of Mallikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd., reported in CDJ 2009 SC 257. The facts in the said case discloses that lorry driver (deceased), during journey, stopped the lorry at Gurugunta and went to a pond by the side of a temple in the village for taking bath. The deceased while taking bath had slipped and fell down. In the context of the said facts, the Supreme Court held that the accident has not taken place in the course of employment, since there is no causal connection between the nature of work and the accident. In para 14, the following observations are made :

"(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the Work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case."

5. It is evident that the facts in the cited case and the facts on hand are totally different. The criteria noted in para 14 of the judgment makes it clear that even on the probabilities, it can be established that there is causal connection between the nature of work and the injury and the accident. It is further held that rights and liabilities would depend upon the facts and circumstances of each case. In the cited case, the driver goes to a pond for bathing, but in the instant case, the driver stopped the lorry, went nearby a land by the side of the road for passing urine. It is not unusual that the villagers fence their lands with live electric wire to prevent theft and cattle trespass. The deceased bona fidely went to urinate, accidentally got electrocuted. This Court in the case of Premila Vs. Shaliwan, reported in 2006(2) ACJ 890 has made the following observation in para 5 of the judgment :

"5. I find no merit in the contention of the insurer. It is a clear case of accident occurring in the use of the motor vehicle and in the course of employment. The facts categorically indicate that the vehicle was stopped temporarily by the driver for a short period for attending to call of nature. The assignment of work of transportation from Hyderabad to Bidar was not yet complete. The deceased driver was very much on duty. The presence of the driver at the accident spot is directly attributable to the use of motor vehicle. Otherwise, there is no occasion for the deceased to be present at the spot. The contention that the driver should be actually driving the vehicle at the time of accident in order to attract the terms of the policy is untenable. The policy conditions lay down that the driver should have been engaged for the purpose of driving. In the instant case, temporary stoppage of the vehicle and the driver getting out of the vehicle for a bona fide reason does not result in suspension/cessation of the legal contract of driving the vehicle for which he is engaged until the vehicle reaches the destination. It would make a difference in law, if the driver completes his assignment of transportation and is off the duty at the time of accident. But, the facts of the case are otherwise. Therefore, for the reason stated above, it is to be held that accident occurred by the use of motor vehicle and in the course of and out of employment to attract the liability of the insurer as per the terms of the statutory policy. Accordingly the question of law is answered in affirmative and the appeal as allowed with costs."

6. The risk of accidental death for a driver of the lorry during journey is inherent in the nature of employment. The nature of accidental death may be for varied reasons. The accidental death can occur while driving or when the driver is off the vehicle for the reasons like attending to natures call, taking food etc. The driver under the said circumstances although is off the vehicle (not driving), he still continues to be in the course of journey and deemed to be in the course of employment. The accidental death for the reasons like reptile bite, robbery, dacoity, and the electrocution as noticed in the instance case should be deemed to be in the course of and out of employment, since the accidental deaths of above nature are inherent in the nature of employment of driving. So much so, deemed to be in the use of motor vehicles.

The terms of policy is one issued u/S.147 of M.V. Act. The policy covers the risk of a driver. At the time of accident, the driver was deemed to be engaged in driving the lorry, his presence at the spot is directly attributable to the nature of employment. Therefore, in the totality of the circumstances stated above, we are of the opinion that the death has arisen in the course of and out of employment. The award made against the insurer is sound and proper. The appeal is dismissed.

The amount in deposit be transferred to the MACT.

Appeal dismissed.