Judgment:
HIGH COURT OF MADHYA PRADESH : JABALPUR BEFORE HON’BLE SHRI JUSTICE ANIL SHARMA, J.M.A. No.3482/2009 Ghansu Dongre Versus Gulab Rao and another --------------------------------------------------------------------------------------------------- Shri R.K. Verma, Adv. for the appellant. Shri Subodh Kathar, Adv. for the respondents. --------------------------------------------------------------------------------------------------- JUDGMENT
(06/8/2013) This miscellaneous appeal filed under Section 30 of the Workmen’s Compensation Act, 1923 has been admitted on the following substantial question of law vide order dated 25.7.2013 :- (i) Whether the Commissioner, Workmen’s Compensation, committed an error of law in not appreciating that the accident in question did not take place during the course of employment and the same did not arise out of employment ?.
2. Learned Commissioner has held that deceased Gajendra was employed with the appellant Ghansu Dongre, who is running a decoration service for lighting in the marriage ceremonies etc. It is pleaded by the claimants that the deceased was receiving salary @ Rs.1,500 per month.
3. Learned counsel for the appellant has submitted that the learned Commissioner has failed to consider the question whether the deceased was in regular employment of the appellant. Further, he is not justified in believing the pleadings of claimants without any proof of employment of deceased with the appellant. Only after considering the evidence that the 2 deceased was involved in carrying the generator and lights in the marriage procession, he has been held as workman. Learned counsel for the appellant has drawn attention towards definition of “employer”. as defined in Section 2(1)(e), the definition of “workman”.. Learned counsel for the appellant has also drawn attention towards the provisions of Section 3(2) which requires continuous period of not less than 6 months in employment. The provisions of Section 3(2) referred to by the learned counsel for the appellant are reproduced below :- (1)………. (2) “If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be as an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment””
4. Learned counsel for the appellant has further drawn attention towards the evidence of claimant Gulab (PW1), who in his cross- examination has admitted that when the marriage procession was going on, some quarrel took place between the villagers and baratis and stones were thrown due to which, the deceased alongwith other persons tried to escape from the site and due to darkness, fell in a well alongwith another person. He has further admitted that he has not produced any document with regard to employment of deceased with the decoration business of appellant Ghansu. Learned counsel for the appellant has further drawn attention to the statement of another witness Deorao (PW2), who has stated in his cross-examination admitting the fact of falling of the deceased in the well and the payment was made only for the date on which they were involved in the work of decoration. Another witness Deochand (PW3) has admitted in his cross-examination that for decoration work payment was made @ Rs.70 per day on daily basis.
5. It is submitted by learned counsel for the appellant that firstly the deceased was not in regular employment of the appellant and he has not died while performing the work of lighting for which he was allegedly employed, although, the appellant has denied the fact that he is running any lighting business. Learned counsel for the appellant has cited certain judgments of Hon’ble Apex Court passed in the matter of Mallikarjuna G. Hiermath vs. Branch Manger, Oriental Insurance Co. Ltd. & Anr. AIR 200.SC 201.in which it has been held that only because death has taken place in the course of employment will not amount to accident. It is further held that under Section 3(1) of the Workmen’s Compensation Act, 1923, it has to be established that there was some casual connection 4 between the death of the workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. Considering the case where death of truck driver occurred after reaching the destination due to drowning in the pond while he was sitting on the steps of the temple pond, it has been held that there is no casual connection during his employment therefore neither employer not the insurer of the vehicle is liable to pay the compensation.
6. Learned counsel for the respondents on the other hand has cited judgment of Hon’ble Division Bench of this Court in the matter of Assistant General Manager, State Bank of India vs. Asha Chauhan 2004(1) MPLJ 26 in which it has been held that the deceased workman was employed for the purpose of maintenance of electricity in appellant’s Bank and use to get Rs.750/- per month. From the evidence on record, it is clear that the deceased was employed in the trade or business of the Bank. There was sufficient nexus between the trade and business of Bank and the duty for which deceased was engaged, therefore, the deceased was workman within the meaning of Section 2(1)(n) of the Workmen’s Compensation Act, 1923.
7. In the present case, no document has been produced by the claimant to show that the deceased was paid on the monthly basis. On 5 the other hand, the evidence produced by the claimant himself shows that payment was made on the daily basis whenever persons were engaged in the work of decoration. Further, the deceased died while running from the spot to save himself from the stones thrown from the persons and due to darkness, fell in the well. Thus, the death of deceased cannot be said to be due to his participation in the said employment with the appellant but it may be the death due to situation created on the spot, therefore, the employer cannot be held liable to pay the compensation considering the judgment of the Hon’ble Apex Court passed in the matter of Mallikarjuna G. Hiermath (supra). Since, it has not been proved that the deceased was receiving monthly salary, the judgment cited by the learned counsel for the respondents is not applicable to the present case.
8. Therefore, the learned Commissioner is not justified in passing the impugned order overlooking the fact that the deceased was only a casual employee in the absence of any evidence with regard to his employment. Even, there is no evidence of contract between the deceased and also even there is no evidence that the deceased was employed with the appellant for a continuous period of 6 months. Therefore, the substantial question of law is answered in favour of the appellant and against the respondents. Consequently, the appeal is allowed and the impugned award passed by the learned Commissioner is set aside. The appellant shall be entitled for refund of amount, if any, paid by him in compliance of the impugned award. (Anil Sharma) Judge PK 6