Dipak Misra, J.
1. In this appeal preferred under Section 30 of the Workmen's Compensation Act, 1923 (for brevity 'the Act'), the insurer, National Insurance Co. Ltd., has called in question the defensibility and pregnability of the award dated 24.5.2006 passed by the Commissioner for Workmen's Compensation-cum-Labour Court, Khandwa in Claim Case No. 28 of 2004.
2. The facts which are essential to be stated for disposal of this appeal are that on 23.2.2004 one Krishna Kumar aged about a score and one, son of respondent Nos. 1 and 2, working with respondent No. 3 as a second driver in truck No. HR 38-G 7165 on the monthly salary of Rs. 4,000 and daily allowance of Rs. 50 while changing the tyre of the truck which had got punctured near R.T.O. barrier in village Sendhwa another truck bearing registration No. RJ 6-R 3275 stopped at some distance on the bridge and there was a blast. In the said blast the stones got scattered in the air and few stones hit the head of said Krishna Kumar as a consequence of which he sustained grievous injuries and was taken to the hospital where he breathed his last. Because of this death the respondent Nos. 1 and 2 filed a claim petition under the provisions of the Act claiming compensation to the tune of Rs. 4,50,000 including 50 per cent penalty and interest at the rate of 12 per cent per annum.
3. The respondent No. 3, the owner-employer of said Krishna Kumar remained ex parte. The insurer rebutted the claim of the claimants and denied its liability to pay compensation on the ground that no accident had taken place with the use of the truck in question and hence, claim petition was not maintainable under the provisions of the Workmen's Compensation Act.
4. The Commissioner found that the deceased had sustained injuries on account of the blast while he was changing the tyre of the truck in which he was engaged and hence, the accident occurred arising out of and during the course of his employment and, therefore, the employer was liable and thereby the insurance company was also liable. Expressing such opinion the Commissioner awarded compensation of Rs. 4,42,740.
5. Questioning the soundness and the correctness of the award Mr. Sanjay Agrawal, learned Counsel for the insurer has raised a singular contention that the award passed by the Commissioner is vitiated in law inasmuch as the death had not occurred due to use of the truck insured with the appellant insurance company and by no stretch of imagination it can be said that the accident had occurred arising out of and during the course of employment.
6. At the very outset we may state that the facts are not disputed. The amount of compensation is not in dispute. What has been canvassed before us is that the vehicle in which the deceased was engaged was not in use and, therefore, it is inapposite to hold that the accident had occurred arising out of and during the course of employment. In this context, we may refer with profit to the decision rendered in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak 1969 ACJ 422 (SC), wherein a three-Judge Bench of the Supreme Court expressed the view as under:
(5) To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' mean 'in the course of the work which the workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered'. In other words there must be a causal relationship between the accident and the employment. The expression 'arising out of the employment' is again not confined to the mere nature of the employment. The expression applies to the employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors a workman is brought within the zone of special danger the injury would be one which arises 'out of the employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire & Yorkshire Railway Co. v. Highley (1917) AC 352, Lord Sumner laid down the following test for determining whether an accident 'arose out of the employment':There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment [sic or reasonably incidental to the employment], or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
7. In the said case their Lordships in para 11 referred to the view expressed by Lord Thankerton which reads as under:.the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment.
8. In the case of Sunder Bai v. General Manager, Ordnance Factory, Jahalpur 1976 ACJ 346 (MP), a Division Bench of this Court in paras 12, 16 and 18 expressed the view as follows:
(12) The learned Counsel for the respondent submitted that as the disease of aneurism from which Moolchand suffered was not attributable to any specific injury by accident, the appellant was not entitled to any compensation. Reference in this connection was made to Sub-section (4) of Section 3 of the Act. This sub-section says that save as provided by Sub-sections (2), (2-A) and (3), no compensation shall be payable to workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of employment. Sub-sections (2), (2-A) and (3), speaking briefly, make provision for occupational diseases and in cases falling under these sub-sections the disease is deemed to be an injury by accident arising out of and in the course of the employment. Nice questions of law arise whether a disease arising out of employment but not covered by these sub-sections can be said to be attributable to any specific injury by accident. In Roberts v. Dorothea State Quarries Co. Ltd. (1948) 2 All ER 201 (HL), a workman employed in state quarries for about 20 years by inhaling the particles of silica day-to-day in the course of his work suffered from the disease of silicosis and was incapacitated. In rejecting his claim for compensation the House of Lords held that the incapacity caused by silicosis was the result of a continuous process going on substantially from day-to-day over a period of years and could not be said to be the result of an accident each one of which was specific and ascertainable and accordingly silicosis was not an injury by accident. On the other hand, in Pyrah v. Doneaster Corporation (1949) 1 All ER 883 (CA), a nurse employed in a tuberculosis hospital suffered from tuberculosis by inhaling tuberculosis germs and the Court of Appeal held that this was an injury by accident on the reasoning that although it might not be possible to fix the exact dates on which the nurse inhaled tuberculosis germs, on each occasion on which that occurred there was an assault of bacilli which constituted an accident. These interesting questions do not arise in the instant case. Here the appellant does not claim compensation on the ground that disease of aneurism was itself an injury by accident arising out of employment but on the ground that the rupture of aneurism which was an injury by accident was accelerated or hastened by the strain of the work in which Moolchand was engaged on the date of his death and, therefore, the injury arose out of and in the course of employment. In my opinion, Sub-section (4) of Section 3 is inapplicable in this case.
xxx xxx xxx(16) Under Section 3 of the Workmen's Compensation Act, an employer is liable to pay compensation to a workman if a personal injury is caused to him by an accident arising out of and in the course of his employment. The work 'accident' has not been defined in the Act; but has been construed by the court in a wider sense as connoting a mishap or untoward event, external or internal, not expected or designed by the victim. The accident in the instant case was rupture of the blood vessels. It is obvious that accident was in the course of his employment; but the crucial point is whether it can be said to arise out of his employment within the meaning of Section 3 of the Act. The learned Commissioner held that as the deceased was not engaged in strenuous work and was already suffering from the disease of aneurism, it could not be said to arise out of the employment. This view does not appear to be correct.
xxx xxx xxx(18) The aforesaid test was quoted with approval by their Lordships of the Apex Court in Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak 1969 ACJ 422 (SC), which may be considered as a leading case on the point. Their Lordships held that the words 'arising out of employment' mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which unless so engaged the workman would not otherwise have suffered. In other words there must be causal relationship between the accident and the employment.
9. In the case of New India Assurance Co. Ltd. v. Sankar Behera 1988 ACJ 337 (Orissa), the learned single Judge of the High Court of Orissa expressed the view that when the driver of the dumper went to make entry in the trip notebook with the nearest office when another dumper fatally knocked him down it can be held that the events are intrinsically connected and one cannot be separated from the other and hence, the accident did arise out of and in course of the employment.
10. In the case of Shyama Devi v. Union of India 2006 ACJ 1529 (SC), a two-Judge Bench of the Supreme Court was dealing with an issue relating to causal connection between the death and the employment. In the said case a group of antisocial elements armed with deadly weapons trespassed the office of stationmaster at the railway station and damaged the railway property and the deceased watchman who was on duty just before the incident had left the office and reached his quarter. On hearing the commotion and finding that the office of the stationmaster was attacked by a mob, he took out his licensed gun and proceeded towards the railway station and tried to pacify the mob, and at that juncture he suffered a 'lathi' blow on his head and was taken to the hospital. Ultimately he succumbed to the injuries. Their Lordships in this factual backdrop held that the watchman was courageous enough to come out of his quarters even after his duty hours to save railway property and, therefore, there was no ground to deny to his dependants the compensation under the Workmen's Compensation Act.
11. In view of the aforesaid enunciation of law the contention of the learned Counsel for the insurer that the accident had not occurred arising out of and in course of employment is not tenable and accordingly we repel the same.
In the result, the appeal, being sans merit, stands dismissed in limine.