First Appeal No.2015 of 2011

1st December, 2011

Petitioner Counsel: Mr.U.S. MALTE
Respondent Counsel: Mr. S.B. GHUTE, Mr.S.A. WAKURE

Cases Cited:
Assistant Executive Engineer, Bijapur Vs. Shantavva, 2003-ACJ-0-79, 2001-ILR (kar)-0-3031 [Para 8,12]
Superintending Engineer, Mechanical-II, T.N. Electricity Board, Mettur Thermal Power Station, Salem Dist. Vs. Sankupathy, 2004-LLN-4-1053 : 2004-CTC-5-321 [Para 8]
Parle Products Ltd. Vs. Subir Mukherjee, 2001-LLJ-1-964 [Para 8,13]
Mackinnon Mackenzie and Co.Private Ltd., Vs. Ibrahim Mahommad Issak, AIR 1970 SC 1906 [Para 8]
Mallikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co.Ltd., and another, 2009 ALL SCR 612 =AIR 2009 SC 2019 [Para 8]
Regional Director, E.S.I. Corporation Vs. Francis De Costa and Another, 1997 (Supp.) Bom.C.R. 904 : 1996(2) Mh.L.J. 911 [Para 9,11,14]
Superintending Engineer, Mechanical-II T.N. Electricity Board, Mettur Thermal Power Station, Salem Dist. Vs. Sankupathy (Tmt), 2004-LLN-4-1053, 2004-CTC-5-321 [Para 12]
B.E.S.T. Undertaking Vs. Ms.Agnes, AIR 1964 SC 193 : 1963-II-LLJ-615 [Para 12]
Shree Krishna Rice and Flour Mills, Samalkot Vs. Challapalli Chittemma, 1961 LLJ 260 [Para 12]

JUDGMENT

JUDGMENT :- Challenge in this appeal by original respondent no.2, The Oriental Insurance Company Ltd. is to the judgment and award passed in W.C.A.No.28 of 2005 by the learned Jt.Civil Judge, S.D. 2 on 26/06/2009, by which the appellant was directed to deposit an amount of Rs.3,26,140/alongwith interest @ 12% p.a., from 22/05/2003 i.e. after one month of incident till its realization.

2. Admit. By consent of the parties, heard finally at this stage.

3. Such of the facts as are necessary for the decision in this appeal can be summarized as :

Shahu Jadhavar was serving with Terna Shetkari Sahakari Sakhar Karkhana Ltd., Terna Nagar, Dhoki, Tal. And Dist.Osmanabad as a watchman. (hereinafter referred to as "sakhar karkhana"). Respondent no.1 is wife of Shahu while respondents no. 2 to 4 are his sons, respondent no.5 is his daughter, while respondent no.6 is his mother. On 22/04/2003, Shahu Jadhavar was supposed to be on duty from 3.00 a.m. to 11.00 a.m. He was r/o.village Tadgaon, Tal.Kallam, which is at the distance of about 21kms from Sakhar Karkhana. Shahu left his residence on his motorbike MH13C6663, around 11.00 p.m. It is stated that he met with an accident with an unknown vehicle in the vicinity of village Dhorala, in which he succumbed to injuries on the spot. Deceased Shahu was residing alongwith his family members at village Tadgaon, Tal.Kallam as no service quarter was provided to him. An accident was reported in the police station by one Murlidhar Dattoba and FIR came to be registered vide CR No. 45/2003. Sakhar Karkhana /respondent no.7 is insured under Workmen's Compensation Act before the Commissioner. On notice of the application W.C.A.No.28/2005, respondent no.7 and the present appellant appeared. The claim of the respondents no.1 to 6 was contested by the respondent no.7 by filing written statement at Exh. 16. The authorized person, whose affidavit was filed on behalf of the sakhar karkhana, has admitted that deceased Shahu was permanent employee of their factory. They have also not disputed that deceased Shahu met with an accident while coming to sugar factory on his own motorcycle. But according to respondent no.7, there was no nexus of the said accident with the employment of the deceased and hence it is contended that it can not be said that the deceased died out of and during the course of employment. In the alternate, it is alleged that if the respondents no.1 to 6 are held liable for compensation, then the appellant should be held liable for the said compensation as they have taken General Insurance Policy of their employees.

4. Present appellant has also contested the said claim by filing separate written statement at Exh.19. Amongst other grounds, they have also disputed the relationship between the deceased and respondent no.7. They have specifically disputed that even if it is proved that the deceased was in the employment of the respondent no.7, but considering the spot of accident, it can not be said that the accident took place during the course of employment as the deceased died far away from the place than the place of his employment. Therefore the risk of death of such employee has not been covered under the policy. It is prayed that the claim being devoid of any merits, liable to be rejected against them.

5. Perusal of the record and proceedings received from the Lower Court shows that the learned Lower Court has framed the issues at Exh.21 and the parties were put for trial. Record and proceeding further shows that during the proceeding before the Lower Court, respondent no.1 examined herself and tendered the relevant documents in respect of FIR registered at Crime No.45/2003. As against this, respondent no.7 examined one Sarjerao Maruti Gaikwad and tendered extract of monthly attendance register for the month of April 2003. Copy of the Insurance Policy was also produced at Exh. 41 and it is not under dispute that it is general insurance policy of the employees of respondent no.7 sakhar karkhana for the purpose of Workmen's Compensation, for the period 01/04/2003 to 31/03/2004. Considering the evidence led by the parties before the Trial Court, learned Lower Court answered issue no.8 in the affirmative and held that the appellant and respondent no.7 are jointly and severally liable for the compensation in the sum of Rs. 3,26,140/alongwith interest by holding that the deceased died during the course of employment and hence appellant and respondent no.7 are jointly and severally liable for compensation claimed by respondent no.1 to 6. That judgment and order is impugned in this appeal challenged by the Insurance Company. At this stage, it is to be noted that the judgment and award passed by the learned Lower Court is not challenged by respondent no.7, the sakhar karkhana.

6. I have heard respective learned counsels for the parties. Learned counsel Shri.U.S.Malte, for the appellant, would submit across the bar that it is not under dispute that the place where the accident had occurred, is at the distance of about 5 to 6 km. away from the sakhar karkhana premises of respondent no.7. It is also not under dispute that this accident had occurred while deceased was allegedly proceeding for his duties, but was dashed by the unknown vehicle. Deceased was residing at the distance of about 21 kms. away from the factory. It is urged that as the accident is not arisen out of the employment, then the Insurance Company is not liable for any compensation to be paid to the respondents no.1 to 6 as under the general insurance policy, risk is not covered under the Workmen's Compensation Act.

7. Learned counsel appearing for respondent no.7 has only urged before this Court that the place of accident is at the distance of 5 to 6 kms away from the factory premises, however, he had conceded the fact that as no service quarter was provided to the deceased, he was residing at Tadgaon.

8. It is urged on behalf of learned counsel for respondents no.1 to 6 that as the deceased was proceeding to factory to report his duties, as no service quarter was provided to him, it is to be held that the accident had occurred in the course of employment of respondent no.7. As the employees of respondent no.7 are insured with the appellant, then the Insurance Company is jointly and severally liable to pay the compensation awarded by the learned Lower Court. In substance, he has supported the judgment and award passed by the Lower Courts for the reasonings recorded therein. In support of his contention, reliance is placed in the matter of Assistant Executive Engineer, Bijapur Versus Shantavva 2003-ACJ-0-79, 2001-ILR (kar)03031, in the matter of Superintending Engineer, Mechanical-II, T.N.Electricity Board, Mettur Thermal Power Station, Salem Dist. Versus Sankupathy, 2004-LLN-4-1053= 2004-CTC-5-321, on which reliance is also placed by the Lower Court in its observation in paragraph no.18 and lastly on Parle Products Ltd. Versus Subir Mukherjee, 2001-LLJ-1-964. In all these judgments, it is held that if the employee met with an accident while reporting on duties, his case is squarely covered under the provisions of Section 3 of The Workmen's Compensation Act and the relatives of the victim are entitled for compensation. He has further relied upon the observations of The Supreme Court in the matter of Mackinnon Mackenzie and Co.Private Ltd., versus Ibrahim Mahommad Issak, AIR 1970 Supreme Court 1906(1). At this stage only, I may express that the facts and ratio led down in this judgment is totally different from the facts and circumstances of the present appeal. Further reliance is placed on the observations of the Supreme Court in the matter of Mallikarjuna G.Hiremath Versus Branch Manager, Oriental Insurance Co.Ltd., and another, AIR 2009 Supreme Court 2019 : [2009 ALL SCR 612]. I afraid to accept that in any manner, the observations in this citation anyway help the respondents herein as it is specifically observed by the Supreme Court in this rulling that accident arising out of and in the course of employment, unless any nexus is established between the death of an employee in that accident in relation with his employment, the workmen is not entitle/liable for any compensation either from the employer or from the insurance company.

9. Per contra, in support of his submissions, learned counsel for appellant has relied on the observations of the Apex Court in the matter of Regional Director, E.S.I.Corporation versus Francis De Costa and Another, 1997(Supp.) Bom.C.R. 904 : 1996(2) Mh.L.J. 911.

10. Considering the submissions across the bar, the point for consideration in this appeal is, "whether the death of the employee, the workmen, while he was proceeding to work, could be construed as the death caused in the course of employment."

11. At this juncture, it is necessary to advert to the observations of the Supreme Court in the matter of Regional Director (cited supra), wherein it is observed in para no.6, 7, 8, 9 and 13 that,

6. In our judgment, by using the words "arising out of....his employment", the legislature gave a restrictive meaning to "employment injury ". the injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. "Out of" in this context, must mean caused by employment., Of course, the phrase "out of" has an exclusive meaning also. If a man is described to be out of his employment, it means he is without a job. The other meaning of the phrase "out of" is "influenced, inspired, or caused by: out of pity; out of respect for him". (Webster Comprehensive Dictionary-international Edition-1984). In the context of Section 2(8), the words "out of" indicate that the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory. The phrase "out ofthe employment" was construed in the case of South Maitland Railways Pty. Ltd. v. James, 67 C.L.R 496, where construing the phrase "out or the employment", Starke, J,, held "the words 'out of' require that the injury had its origin in the employment".

7. Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2(8) of the Act. The words "accident . . . arising out of . . . his employment" indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.

8. The other words of limitation in subsection( 8) of Section 2 is "in the course of his employment". The dictionary meaning of "in the course of" is "during (in the course of time, as time goes by), while doing (The Concise Oxford Dictionary, New Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period or employment. If the employee's work shift begins at 4.30 P.M., any accident before that time will not be "in the course of his employment". The journey to the factory may have been undertaken for working at the factory at 4.30 P.M. But this journey was certainly not in course of employment. If employment begins from the moment the employee sets from his house for the factory, then even if the employee stumbles and falls down at the doorstep of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided.

9. We were referred to a number of cases on this point. In the case of Regina v. National Insurance Commissioner. Ex parte Michael, (1977) 1 Weekly Law Reports 109 the Court of Appeal in England had to construe a phrase "caused by accident arising out of and in the course of his employment" in Section 5(1) of the National Insurance (Industrial Injuries) Act, 1965. Lord Denning M.R. started his judgment with the observation:

"So we come back, once again, to those all too familiar words 'arising out of and in the course of his employment'. They have been worthto lawyersa King's ransom. The reason is because, although so simple, they have to be applied to facts which very infinitely. Quite often the primary faces are not in dispute: or they are proved beyond question. But the inference from them is matter of law. And matters or law can be taken higher. In the old days they went up to the House of Lords. Nowadays they have to be determined, not by the courts, but by the hierarchy of tribunals set up under the National Insurance Acts."

13. The meaning of the words "in the course of his employment" appearing in Section 3(1) of Workmen's Compensation Acts 1923. was examined by this Court in the case of Saurashtra Salt Manufacturing Co. v, Bai Valu Raja, AIR 1958 SC 881. There, the appellant, a salt manufacturing company, employed workmen both temporary and permanent. The salt works was situated near a creek opposite to the town of Porbandar. The salt works could be reached by at least two ways from the town, one an over land route nearly 6 to 7 miles long and the other via a creek which had to be crossed by a boat. In the evening of 12.6.1952, a boat carrying some of the workmen capsized due to bad weather and overloading. As a result of this, some of the workmen were drowned. One of the questions that came up for consideration was whether the accident had taken place in the course of the employment of the workers. S. Jafer Imam, J., speaking for the court, held "As a rule, the 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, the journey to and from the place of employment being excluded." After laying down the principle broadly, S. Jafer Imams, J., went or to observe that there might be some reasonable extension in both time and place to this principle. A workman might be regarded as in the course of his employment even though he had not reached or had left his employer's premises in some special cases. The facts and circumstances of each case would have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension. But, examining the facts of the case in particular, after noticing the fact that the workman used a boat, which was also used as public ferry for which they had to pay the boatman's dues, S.Jafer Imam, J. observed:

"It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notion extension extends upon point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable."

This is precisely the case before us that while deceased Shahu was proceeding to his place of work and on his way, met with an accident because of dash given by the unknown vehicle. Thus it can not be said that the accident arose out of and in the course of employment.

12. Perusal of the judgment of the Lower Court shows that the Lower Court has relied upon the judgment in the matter of Superintending Engineer, Mechanical-II T.N. Electricity Board, Mettur Thermal Power Station, Salem Dist. Versus Sankupathy (Tmt), 2004-LLN-4-1053, 2004CTC5321, High Court of Madras, relying on the observations of the Supreme Court in the matter of B.E.S.T. Undertaking versus Ms.Agnes, AIR 1964 SC 193 : 1963-II-LLJ-615, so also on the observations in the matter of Assistant Executive Engineer, Bijapur Versus Shantavva, 2003-ACJ-0-79, 2001-ILR (Kar) -0-3031, wherein reliance was placed on the decision of Shree Krishna Rice and Flour Mills, Samalkot V.Challapalli Chittemma, 1961 LLJ 260, wherein provisions u/s. 3 of The Workmen's Compensation Act are discussed. At this juncture, I may quote that the Supreme Court has discussed the ratio of their decision in B.E.S.T. Undertaking versus Ms.Agnes, AIR 1964 SC 193 : 1963-II-LLJ-615, in para no.15 wherein it is observed that,

"This decision in our view, does not come to the assistance of the employee's case. An employee of a Transport Undertaking was travelling in a vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked."

Thus the learned Trial Court has incorrectly relied on this judgment.

13. Further reliance is placed by the respondents in the matter of Parle Products Limited versus Subit Mukherjee, 2001-LLJ-1-964, delivered by the Division Bench of the High Court at Calcutta. The facts before the Division Bench of the High Court at Calcutta, as discussed in para no.2, are clearly different from the facts of the present case. As in the said case, the claimant/respondent was working as a Territory Supervisor and was looking after the sales of the products of the appellant company. The claimant/respondent was directed to attend a conference at Puri and the said conference was organized by the appellant complaint/the employer. The claimant alongwith his other colleagues left Calcutta to attend the said conference and while journey, he was assaulted and thrown out of the railway compartment, as a result whereof he sustained multiple injuries. Thus in the said case, the employee was travelling in the railway in the course of his employment to attend the conference. Thus the observations of the High Court of Calcutta differ from the facts of the case in the appeal, hence not applicable.

14. Considering the overall effect of the judgments cited supra, and by way of judicial discipline, the judgment and ratio delivered by the Supreme Court is binding on the subordinate courts. As observed by the Full Bench of the Supreme Court in the matter of Regional Director versus Francis De Costa (cited supra), that mere road accident, while the employee on his way to his employment, can not be said to have its origin in his employment in the factory. From the admitted facts, it is clear that the deceased met with a road accident due to dash given by the unknown vehicle, while he was on his way to his employment, thus can not be said to its origin in his employment in the said factory. Considering the overall discussion, the finding to be recorded on the point for consideration in the negative.

15. As the finding is recorded on the point for consideration in the negative, then it is but natural that the Insurance Company is not liable to pay the compensation as awarded by the court below. In the substance, appeal succeeds to the extent of present appellant.

16. Accordingly, appeal is allowed. The impugned order passed by the Lower Court against the appellant Insurance Company, in terms of prayer clause 2, is hereby quashed and set aside. So also the directions issued against the respondent no.2 to pay the amount of compensation within 1 month from the date of order impugned, is also quashed and set aside. Accordingly appeal succeeds and stands disposed of accordingly.

Appeal allowed.