K.A. Abdul Gafoor, J.
1. The writ petition is by the 1st respondent in the appeal filed by the insurer. The contentions raised in the appeal by the insurer is that admittedly by the parties, the death of the workman occurred due to drowning. This cannot have any causal connection with his employment as a conductor in the bus insured with the appellant. So the death did not occur during the course of employment and the respondents are not entitled to the compensation in terms of the Workmen's Compensation Act which shall have to be paid by the appellant on the strength of the insurance policy in force. In support of this contention the appellant relies on the decision of the Apex Court in E.S.I. Corporation v. Francis De Costa II (1997) ACC 575 (SC) : 1996 (2) KLT 799 and a decision of the Divison Bench of this Court reported in Travancore Titanium Products Ltd. v. Jerro II (2000) ACC 261 : 2000 (1) KLT 643.
2. It is submitted by the Counsel for the first respondent who has filed Writ Petition No. 15973/2005, that the facts proved before the workmen Compensation Commissioner disclosed that the bus in which the deceased was a conductor had to start its trip at 3.30 a.m. in the night. Therefore, apart from himself the driver and cleaner were for the purpose of employment, to be with the bus in the bus station during the night after the trip had terminated. Consequently they have to meet the human needs including bathing before they commence work on the next day by 3.30 a.m. It is for the purpose of bathing and meeting other humanly needs they had gone to a stream nearby and it was at that time the accident occurred resulting death of the workman who was working as a conductor of the bus. Therefore, the accident did have direct and causal connection with the employment. In support of this contention the decision reported in Devshi Bhanji Khona v. Mary Burna and Anr. II (1985) ACC 354 : 1985 KLT 78, is relied on.
3. We have to examine the question of law raised in this appeal whether the death was as a result of the accident occurred arising out of and during the course of employment as provided in Section 3 of the Workmen's Compensation Act in order to cast liability on the employer to compensate for the death. The Supreme Court examining the meaning of employment injury as defined in Employees State Insurance Act, 1948 considered as follows:
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 of the employment' was construed in the case of South Maitland Railways Pvt. Ltd. v. James 67 CLR 496 where construing the phrase 'out of the employment' Strake, J. held the words 'out of' require that the injury had its origin in the employment.
4. Thus the Supreme Court, referring to Maitland Railways case found that the words 'out of' require that the injury has its origin in the employment. The Supreme Court also had kept in mind before coming to this conclusion that the employment injury shall arise in any way out of his employment. Therefore, the connection between the employment injury and the employment shall always have to be taken into consideration.
5. A Division Bench of this Court in Jerro's case (supra), held that:
The injury or the accident should be clearly relatable to duty. This is evident from the expression 'while on duty'. In other words, it means that the injury or accident occurred while the employee was performing his duty.
The meaning assigned to the word 'on duty' by the Division Bench is that duty is an assigned task. The Division Bench made a distention between a case where an employee is inside the factory premises in connection with duty and he being actually on duty. That was a case where the employee came to the factory premises far earlier in spite of his duty commencing only at 2 p.m. and the accident occurred for earlier than the commencement of such duty.
6. We cannot consider any case divorced from the facts situation. In the case on hand the evidence clearly disclosed that he had been staying in the bus for the purpose of commencing its trip early morning at 3.30 a.m. The bus was being parked in a petrol bunk and the accident occurred when he went to the nearby stream for the purpose of taking bath along with the driver and the conductor. Thus it has come out in evidence that the deceased workman along with his colleagues had been there with the bus for the purpose of commencing duty early in the next morning at 3.30 a.m. So there was connection between the accident that had occurred and the duty that he had to perform immediately after that. He had gone for taking bath just before commencing duty at 3.30 a.m. as he had been staying in the bus for the purpose of taking the bus at that time. So the connection between the accident and the employment is thus manifest.
7. Another Divison Bench of this Court in Devshi Bhanji's case (supra), has made it clear that when there is causal connection between the employment and the death of a workman in an unexpected way, it could be certainly be considered as an accident arising out of and in the course of employment which would entitle the dependent legal heir to claim compensation. Of course the facts situation in that case arose when a workman fell down due to heart attack which resulted because of the exertion arising out of the employment and that was the causal connection between the accident and the employment in that case.
8. Similarly in this case also as the workman was expected to be in the bus for the purpose of commencing his duty in the early morning at 3.30 a.m. He had to attend to his human needs before commencing duty as he was staying in the bus. There was no arrangement made for that purpose. He had to go to the nearby stream for taking bath. It was at that time there occurred the accident resulting in loss of life of the workman. Necessarily it shall be taken as one arising in any way out of his employment and has its origin in the employment, as held by the Supreme Court in Francis De Costa's Case (supra). Necessarily, it cannot be stated that the death had not arisen out of and in the course of employment. The question of law raised is thus answered in negative against the appellant.
9. Of course the appellant is well justified in contending that the Commissioner went wrong in awarding interest at the rate of 12% applying provisions in the amended Act. The Counsel for the first respondent appearing for the writ petitioner in W.P. (C) No. 15973/2005 submits that the statutory rate of interest provided in the unamended provision is only 6% and that the accident occurred prior to the amendment to the Workmen's Compensation Act on 15.9.1995. Consequently, the pre-amended rate alone shall be applied to the case. That part of the question of law raised by the appellant is answered in the affirmative in favour of the appellant. Accordingly, the appeals are disposed of as follows.
The first respondent in MFA No. 33/2005, who is the petitioner in W.P. (C) No. 15973/2005 is entitled to the compensation as found in the impugned order but with interest at the rate of 6% and the amount to that extent in deposit can be withdrawn by him. The balance amount in deposit shall be refunded to the appellant Insurance Company.