P.K. Deb, J.
1. This appeal has been preferred against the judgment and decree dated 30.8.1986 passed by the then Additional Subordinate Judge, 2nd Court, Dhanbad in Money Suit No. 6 of 1982, whereby the plaintiffs suit for recovery of Rs. 27,675/- including interest thereof has been allowed against the defendants-appellants.
2. The admitted fact remains that the plaintiff is a Government company having its registered office at Koyla Bhavan, Dhanbad and carries on the business of extraction of coal from coal mines located in the district of Dhanbad. The colliery of Katras Chaitudih was a private coking coal company and after the coming up of the Coal Mines Nationalization Act, the same has been vested in the Central Government, w.e.f. 1.5.1972. In the Katras Chaitudih colliery, there is a railway Siding known as Nawagarh No. 3 Siding which was constructed long before 1926 for the purpose of loading of coal into wagons from the colliery of the plaintiff to different destination. The defendant is the owner of neighbouring Malkara Colliery which is a Captive mine of defendant No. 1. The defendant No. 1 is a Private Company having its main business of production of Steel and Steel products, but had got mines also including Malkara colliery. The defendant No. 1 in the year 1959 constructed an Aerial ropeway and a portion of that ropeway passes through Katras Chaitudih colliery siding and also a battery of hard coke ovens of the plaintiff in that colliery situated at village Budroochak and Kumarjuri also comes below that aerial ropeway. An agreement by way of licence has been executed between the then owner of the Chaitudih Coal Mines namely M/s. Burrakar Coking Coal Company Ltd. and the defendant No. 1 Company on 31.5.1959 for erecting trestles, etc. for the purpose of running of the ropeway. The defendant No. 2 is the Manager of Malkara Colliery belonging to the defendant No. 1 and he is responsible for maintenance and proper upkeep of this aerial ropeway under the provisions of Bihar and Orissa Ropeway Act and the Rules framed thereunder. As per the Act and Rules and the agreement arrived at between the erstwhile owner of the Chaitudih colliery and the defendant No. 1, it is the responsibility of the owner of the ropeway to provide protective cover underneath the ropeway, particularly over road, railway lines, habitations, Works Siding, etc. so that loaded or unloaded buckets do not fall down on the ground.
3. According to the plaintiff, the defendants did not provide any such Protective cover below the ropeway in any portion where it passes either over the railway siding or the hard coke batteries of the Katras Chaitudih colliery of the plaintiff. On 8.2.1980 around 9 a.m. when two of the workmen of the plaintiff namely, A.K. Das and Anwaruddin were engaged in course of their work in the Railway siding i.e., Nawagarh No. 3 Siding, a sand bucket of the aerial ropeway of the defendant crossing over the hard coke battery and Nawagarh No. 3 Siding fell, as a result of which both the workmen were injured. The injuries on the person of Anwaruddin was not serious, but A.K. Das succumbed to his injuries despite best medical, treatment provided by the plaintiff. It is the case of the plaintiff that because of the negligence of non-providing of Protective cover the two workmen received injuries in course of and arising out of their employment. The deceased employee A.K. Das was getting wages of Rs. 816.44 per month and as per the provisions of the Workmen Compensation Act, the plaintiff had to compensate the dependents of deceased employee, A.K. Das to the tune of Rs. 27,675/- as per assessment being made on the basis of the provisions of Workman Compensation Act. As the accident occurred solely due to the negligence of the defendants, the plaintiff have made correspondences with the defendants for reimbursement of the compensation amount, which had to be paid by the plaintiff to his workman, but the defendant did not pay any heed to it and hence the suit has been filed.
4. In the written statement filed by the defendants, the averments made in the plaint have been denied and usual plea of non-maintainability, etc. of the suit had been taken. The factual aspect that the Ropeway passes through Katras Chaitudih Siding had not been denied. It is their case that where protective measures under the Rules of Bihar and Orissa Ropeway Act were required, protective cover have been given at the time of installation to the satisfaction of the competent authority, meaning thereby the Government of Bihar. It is their further case that the covering was there about the Railway Siding and the bucket which had fallen was outside that covering and practically there the employee. A.K. Das or Anwaruddin were not on duties, rather they were taking rest and that place did not cover the protective measures to be taken by the defendants and as such even if there was any negligence on the part of the defendant for falling of the alleged bucket, the defendants cannot be legally liable to reimburse the compensation paid by the plaintiff to its employee's dependents. It has further been pleaded that such compensation were paid by the plaintiff on its own and not under any Order of Assessment Officer or the Tribunal as contemplated under the Workman Compensation Act and as such re-imbursement is not possible under any law for the time being. It was further stated that the accident took place due to the fault of licensee and before that accident the plaintiff never took any objection regarding non-using of Protective cover besides the Railway siding.
5. On the basis of the pleading of the parties, following issues have been framed in the suit:
(i) Is there any cause of action?
(ii) Is the suit maintainable?
(iii) Is the suit barred by limitation?
(iv) Is the suit barred by mis-joinder of the parties?
(v) Is the plaintiff entitled to a decree as prayed for?
(vi) To what other relief or reliefs, if any, is the plaintiff entitled?
6. On behalf of the plaintiff six witnesses have been examined including representative of the plaintiff-Company and also Anwaruddin Ansari who was present at the time of accident and he was also injured by the said accident. The Advocate Commissioner who was appointed to find out the exact place where the accident took place had also been examined. On behalf of the defendant, three witnesses have been examined for denial of the plaintiffs case. The vital issues being issue No. 5, after consideration of the evidence on record and the documents proved from both the sides was decided in favour of the plaintiff. Issue No. 4 was not pressed, while issue Nos. 1, 2, 3 and 6 were also decided in favour of the plaintiff.
7. Mr. B.P. Verma, appearing on behalf of the defendants-appellants has attacked the impugned judgment on the following grounds:
(i) That the ropeway was granted when all the procedures required under the Bihar & Orissa Ropeway Act and the Rules framed therein have been complied with by the defendants and as such there is no scope of the plaintiff to find fault with the non-commission of protective, etc. in the path way of the ropeway ;
(ii) That the employee A.K. Das had duties up to 8. a.m. on the fateful day and the accident occurred At 9. a.m. and as such, he cannot be said to be in the employment or in his duties at the relevant time of accident and as such, there was no question of payment of compensation under the Workman Compensation Act.
8. Mr. A.K. Mehta, appearing on behalf of the plaintiff-respondent has controverted all these submissions by referring to the findings of the impugned judgment and the materials on record and also on points of law.
9. The admitted fact remains that in the area through which the ropeway passes was already under the mining operation since 1926 and the ropeway was installed only in the year 1926. The licence of ropeway has been granted by the State of Bihar to the defendants, but as the mining operation was there and also a Railway Siding falls within the pathway of ropeway, defendants had to make an agreement with the owner of the mines. M/s. BCCL has stepped into the shoes of the erstwhile owner after the Nationalisation of the mines and as such the agreement, Ext., is binding on M/s. BCCL the plaintiff also. On this legal aspect, there is no much objection.
10. The suit has been filed on the basis of the terms of the agreement were in it was specifically mentioned that any loss or damages being suffered by the owner of the Colliery for running of the ropeway shall be made good of by the defendant-Company. From the Pleader Commissioner's report, it is clear hat cover protective was used only over the Railway Siding and the accident occurred just by the side of the Siding. There was no cover protective in the whole of the Pathway. The agreement, Ext. A, does not show anywhere that cover protective would be there only over the Railway siding. When cover protective is not there in the ropeway where the accident took place just by the Railway siding then as per the terms of the agreement, Ext. A, the defendant is definitely liable to make good of the loss suffered by the plaintiff.
The submission of Mr. B.P. Verma that being satisfied of the requirements under the Bihar and Orissa Ropeway Act and the Rules framed thereunder they have been provided licence by the State Government and as such whatever protective has been used by the defendant-Company, the same being sufficient and cannot be questioned by the plaintiff. Here, we are not concerned in the present case, as to the terms and conditions of the licence being granted in favour of the defendants. We are concerned with the terms and conditions of agreement, Ext. A. Admittedly, the sand loaded bucket fell just by the side of the Railway Siding, where there was no protective used by the defendants and for such fall one of the employee of the plaintiff suffered injuries resulting in his death and for such death the plaintiff had to pay compensation under the Workmen's Compensation Act. The loss for making payment under the Statute definitely falls within the terms and conditions of Ext. A to the reimbursed by the defendant-Company. There is no escape of the defendant on the plea that they were granted licence by the State of Bihar after fulfilment of all necessary requirement under Bihar and Orissa Ropeway Act and the Rules framed thereunder when the accident had occurred causing loss to the Company, the same must be made good of as per the agreement by the defendant-Company. So, the first point has rightly been decided by the learned Court below in the impugned judgment.
11. Regarding the second point, it is the contention of the defendants-appellants that the compensation was paid to the dependents of the deceased employee not under duress but being voluntarily under the Workmen's Compensation Act and such voluntary payment when no assessment order was passed by any Assessing Officer or Court or the Tribunal, the same cannot be reimbursed y the defendant-Company, has no force at all. Because under the Workmen's Compensation Act, there are provisions as to how assessment is to be made for the purpose of compensation to the dependants of deceased employee, who met with death due to accident, during the course of his employment. Only when there is any dispute regarding assessment of compensation, the same should be referred to the Assessor and to the Tribunal, if necessary. Here, under the Act when there is bounden duty on the part of the employer to make payment of compensation the same is construed to be a duress under the Statute for making such payment. So, this submission that the compensation has been paid voluntarily by the plaintiff-Company and not being reimbursable from the defendant-company has got no force.
12. Regarding the time of accident, it is an admitted fact that at 8 a.m. the duty of A.K. Das was over and at 9 a.m. accident took place. It has now been decided that the course of employment under the Workmen's Compensation Act is to be construed in proper sense due to socio-Economic Legislature and even it has gone to the extent by findings of different High Courts that when an employee starts for his employment from his quarter, the course of employment starts from that period and ends when he returns back to the quarter. In the present case, although plea was taken from the side of the defendants-appellants that Anwaruddin and A.K. Das were gossiping, when the accident took place and none of the them were under the employment, has been turned down by Anwaruddin himself, when he stated that his duties started from 8 a.m. after the duty of A.K. Das was over and at the relevant time of accident, they were busy in handing over and taking over of charges. Just after finishing of the duty hours, the deceased employee might be taking his time to go back to his residence and that period when he was by the side of his working place, when the accident took place, it cannot be said that he was not in the course arising out of his employment. Hence, the learned Court below has rightly decided this point also in favour of the plaintiff-Company.
13. In view of the above discussions and of the admitted position remaining as discussed above, I find and hold that the learned Court below has rightly approached the case in proper perspective and then arrived at his decision. There is no error of law or error of facts in deciding the case. The points raised in attacking the judgment from the appellants' side have got no force on the basis of the materials on record, as discussed above. Hence, I do not find any force in this appeal.
14. In the result, the appeal is dismissed with costs and the impugned judgment and decree is hereby upheld and affirmed.