First Appeal No. 279 of 2001

13th June, 2013

Petitioner Counsel: Mr. M.P. Badar
Respondent Counsel: Mr. S.S. Ghate

Cases Cited:
Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and another, 2000 (85) FLR 801 [Para 4]
Employees' State Insurance Corporation Vs. Francis De Costa, 1996 ACJ 1281 [Para 7]
Superintending Engineer, Parambikulam Aliar Project, Pollachi Vs. Andammal, 1983-II-LLJ-326 [Para 10]
Varkeyachan Vs. Thomman, 1979 ACJ 319 [Para 11]
TNCS Corporation Ltd. Vs. S. Poomalai, 1994 II CLR 576 [Para 12]
Bhagubai Vs. General Manager, Central Railway, V.T. Bombay, AIR 1955 Bom. 105 [Para 13]
State of Gujarat Vs. Rajendra Khodabhai Deshdia and Ors., 1991 CLR 582 [Para 15]
Jyothi Ademma Vs. Plant Engineer, Nellore and another, 2006(5) ALL MR 16 (S.C.)=(2006) 5 SCC 513 [Para 15]

JUDGMENT

JUDGMENT :- This is a First Appeal filed by the Conservator of Forest, Nagpur challenging the Judgment and Award dt.24.5.2001 passed by the Commissioner under Workmen's Compensation Act in W.C.A. (F) Application no.24 of 1999, by which the appellants were directed to pay compensation in the sum of Rs.1,63,070/- with interest @ 12 % p.a.

FACTS :

2. Deceased Ganpatrao Dhote, the husband of original applicant no.1/respondent no.1 herein and the father of other respondents was in the employment of appellant/Forest department for about a period of twenty years before his death as a Forest Guard attached to Bhalewada bit under South Umrer Forest range. At the relevant time, the deceased was posted at Compartment No.421 having territorial area of 24 kms. His duty was to preserve the forest from theft and to see that no part of the forest catches fire and to extinguish the fire. On the fateful day, on 29.1.1999, with his usual uniform, the deceased went on duty towards the forest with his motor cycle and was patroling in Edsamba Jungle. It appears that he was murdered by some unidentified persons and his dead body was kept near the nala under the earth. Having searched for about two days since the deceased did not return home, his dead body was found near nala in rotten condition. Thereafter, Officer visited the spot and after lodging the First Information Report, the police and the C.I.D. made investigation, but could not arrest the murderers. The dead body of Ganpat was sent for post-mortem examination having serious injuries, which was identified. During the panchanama, it was found that a belt having emboss of Forest department was lying on the spot. Age of the deceased was 42 years. The dependents of the deceased, therefore, claimed compensation.

3. The defence taken by the appellant/Forest department in the Written Statement was that the deceased was not a workman nor the incident of murder could be said to be an accident, which is a pre-condition for claiming compensation under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act of 1923"). The Commissioner framed issues and answered the issues in favour of the respondents/claimants and held that compensation was payable to the family members of the deceased with interest @ 12 % p.a.

4. Mr.M.P.Badar, learned Special Counsel for the appellant vehementally argued that, by no stretch of imagination, the murder can be brought within the sweep of provisions of the Act of 1923 for the purposes of granting compensation and relied upon the decision of the Supreme Court in the case of Smt. Rita Devi and Others vs. New India Assurance Co. Ltd. and another reported in 2000 (85) FLR 801. He then argued that 12 % interest granted by the Commissioner was not at all justified and there is no basis for awarding the said rate of interest. He further argued that deceased Ganpat being employee of the Forest department, his dependents were not entitled to any compensation under the Act of 1923 because his dependents were entitled to all the benefits due to the deceased/employee and therefore, the provisions of the Act of 1923 as to compensation stand excluded.

5. Per Contra, Mr. S.S. Ghate, learned Counsel for respondent nos. 1 to 3 supported the impugned judgment and Award and argued that the judgment and Award fully considers all the aspects of the matter. The provisions of the Act of 1923 are independent of benefits due to the deceased being a Government Servant and the compensation is payable even if usual benefits from the Government to the dependents of the deceased are payable.

6. Having heard the learned Counsel for the rival parties, the following substantial questions of law arise in the present First Appeal.

a)	Whether, in the facts of the present case, murder of an employee in the course of his employment would fall within the meaning of provisions of the Workmen’s Compensation Act for awarding compen sation under the said Act?	Yes.
b)	Whether the compensation under the Workmen’s Compensation Act can be denied if the deceased is a Government servant and the Government, after death of such employee,provides for usual benefits to the dependents?	No.

7. Dealing with the first substantial question of law, I find that the decision in the three Judge Bench of the Supreme Court in the case of Employees' State Insurance Corporation .vs. Francis De Costa reported in 1996 ACJ 1281 would be of much help to find out the correct legal position. Though, in the said judgment, provisions of the Employees State Insurance Act, 1948 fell for consideration and though, in the said judgment, Civil Appeal by the Insurance Corporation was allowed and the order of grant of compensation was set aside, the principle of law enunciated therein is of much importance. It would be appropriate to find out the principles led therein.

8. Referring to the starting observations by Lord Denning, it is stated that the familiar words 'arising out of and in the course of his employment' though appear to be so simple, they have to be applied to the facts which vary infinitely by the Courts or the Tribunals. The Supreme Court then referred in para 11 - further observations of Lord Denning thus :

"Lord Denning observed :

"Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something 'reasonably incidental' to his employment. But if he has an accident on the way, it is well settled that it does not 'arise out of and in the course of his employment'. Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely 'reasonably incidental' to his employment), nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment. It needed a special 'deeming' provision in a statute to make it 'deemed' to arise out of and in the course of his employment."

9. I then quote para 28 from the said Judgment of Supreme Court, which reads thus :

"28. In the case of Dover Navigation Co. Ltd. v. Isabella Craig, 1940 AC 190, it was observed by Lord Wright that :

"Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course of' the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to casualty. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence, the section imports a distinction which it does not define. The language is simple and unqualified."

10. It is a fact that the words "arising out of and in the course of employment" are deceptively simple and litigiously prolific. In the case of Superintending Engineer, Parambikulam Aliar Project, Pollachi vs. Andammal, (1983-II-LLJ-326), a Lascar appointed to regulate the flow of water in a branch canal by operating upon the sluices and shutters, was done to death at the place of duty by the person against whom he had made the complaint. There was nothing on the record to show that he had added the peril. The Madras High Court, in the aforesaid circumstance, held that there was casual and proximate connection between the employment and the accident and the accident will be treated to have arisen out of and in the course of his employment and, as such, the applicant is entitled to compensation. "

11. In Varkeyachan v. Thomman, 1979 ACJ 319, a Division Bench of Kerala High Court took the view that the term 'accident' for the purpose of the law relating to compensation for personal injuries sustained by workman and the employer's liability in that behalf includes any injury which is not designed by the workman himself and it is of no consequence that the injury was designed and intended by the person inflicting the same. We adopt the said view of the earlier Division Bench."

12. In the case of TNCS Corporation Ltd. v. S. Poomalai reported in 1994 II CLR 576, the workman therein had left his house for attending his work in rice mill. On the way, there was a communal riot. The workman was murdered in the communal riot. The Hon'ble Judge of Madras High Court held that if the workman had not left his house for work, he would not have been murdered and therefore, death arose out of and in the course of employment.

13. In the case of Bhagubai v. General Manager, Central Railway, V.T., Bombay, A.I.R. 1955 Bom. 105, the Division Bench of this Court held thus :

"It is clear that there must be a casual connection between the accident and the employment in order that it could be said that accident arose out of employment of the concerned workman and the cause contemplated is proximate cause and not any remote cause."

14. Keeping in mind the above principles, it would be appropriate to examine whether in the instant case the above principles could be applied. It is not in dispute that deceased Ganpat was in the employment of the appellant/Forest Department for about 20 years as a Forest Guard. Undoubtedly, he is a workman. On the fateful day, he went in his uniform for patroling in Edsamba forest on his motor cycle and his dead body was traced after two days and the post mortem report shows findings of homicidal death. The fact that, on the dead body, a belt was found with emboss of forest department clearly corroborated the fact that the deceased was performing his duty in the deep forest. The Commissioner has recorded a finding that there was no difficulty in holding that death was homicidal in the light of serious injuries, with which I also agree. But the question is whether the same was arising out of and in the course of employment. Even if it is established that Ganpat was murdered in the forest, the burden to show that deceased Ganpat invited peril and he himself was responsible for the incident of murder was on the forest department. But, the appellant did not either plead or prove the said case. It will have to be, therefore, clearly found that Ganpat had gone to forest for duty as usual and he was murdered by some unidentified persons. Had he not gone to attend his duty in the forest, the incident would not have occurred. That leads me to hold that it is the incident arising out of and in the course of his employment.

15. There is a decision of Division Bench of Gujarat High Court in the case of State of Gujarat .vs. Rajendra Khodabhai Deshdia and Ors. reported in 1991 CLR 582 where also the deceased was a forest guard and was held to be workman and was covered by the provisions of the Act of 1923. Thus, applying the above principles, I am of the clear opinion that the Commissioner committed no error. The first question will have to be, therefore, answered in the affirmative.

Mr. M.P. Badar, learned Special Counsel for respondent nos. 1 to 3 placed reliance on the decision of the Supreme Court in the case Jyothi Ademma .vs. Plant Engineer, Nellore and another reported in (2006) 5 SCC 513 : [2006(5) ALL MR 16 (S.C.)]. The Supreme Court held in the said case that the duty of the workman in that case was only of switching switches on and off only and nothing more. There was an opinion of Doctor that there was no scope for stress or strain in the duties of said workman, who died of suffering a heart attack, because he was said to have been already suffering from heart disease and was receiving treatment therefor. In that context, the Supreme Court held that his death could not have been caused arising out of and in the course of employment. Those facts are clearly distinguishable and cannot have any application to the facts of the instant case.

16. The second question framed by me will have to be answered in the negative since the remedy provided by the Act of 1923 is an independent remedy besides the benefits the dependents of the deceased are entitled to get from the Government and the Legislature must be said to be well aware about the same and that is why, there is no exemption granted to the State Government from the provisions of the Act of 1923 for granting compensation merely because it provides for dependent benefits. I, therefore, answer question no.2 in the negative.

17. The next submission of Mr. M.P. Badar, Special Counsel for appellants about grant of 12 % interest will have to be rejected for the simple reason that the Act mandatorily provides for payment of interest upon failure to deposit the compensation within the prescribed time. Admittedly, the compensation was not deposited within the prescribed time and therefore, awarding of interest is also correct and proper. In the result, I find no merit in the present First Appeal. Thus, I make the following order.

ORDER

First Appeal No.279 of 2001 is dismissed.

No order as to costs.

Appeal dismissed.