United India Insurance Co. Ltd. Vs. Sudini Indira and ors. - Court Judgment

P.S. Narayana, J.

1. The substantial question of law raised in the present civil miscellaneous appeal preferred by the opposite party No. 2, United India Insurance Co. Ltd., represented by its Regional Manager, Regional Office, Basheerbagh, Hyderabad, against the order made in W.C. No. 22 of 2001 is, whether the Commissioner for Workmen's Compensation is justified in awarding compensation though the admitted facts go to show that the death of the workman was not arising out of employment though it may be in the course of employment.

2. The respondent-claimants filed the CM.P. No. 5334 of 2003 to vacate the interim order dated 18.2.2003 made by this Court in C.M.P. No. 3810 of 2003. At the request of both the Counsel, the main civil miscellaneous appeal itself is taken up for final disposal at this stage.

3. The facts in brief are that one S. Manipal Reddy, resident of Cherukupally village, Diddi Mandal, Nalgonda District worked as a truck driver under opposite party No. 1 in W.C. No. 22 of 2001 on the file of Commissioner for Workmen's Compensation at Nalgonda, and while he was on duty he halted his lorry near Brahmadev within the police station limits of Harai of Chhindwara District of Madhya Pradesh. The said Manipal Reddy was in-charge of truck bearing No. AP 9-U 4440 owned by opposite party No. 1. On 22.2.2001 another truck bearing No. AP 9-V 0700 which also belonged to opposite party No. 1 and at the relevant time came from Delhi was stopped at the same place by its driver Bahadur Khan, and as both the drivers were working under the same employer, Bahadur Khan stopped his truck on seeing the vehicle of the deceased. There was a quarrel between the two drivers and Bahadur Khan hit the deceased on the head and as a result of the injury he succumbed to the injury on the spot. The deceased truck driver is a workman and he met his death during the course of employment with opposite party No. 1. He was paid Rs. 3,000/- towards wages besides Batta of Rs. 50/- per day. It is further stated that opposite party No. 2, the present appellant Insurance Company, is also liable for payment of compensation by virtue of policy No. 050305/31/021/16/03389/2000, which was valid from 8.5.2000 to 7.5.2001. On 19.11.2001, opposite party No. 1 was set ex parte. P.W. I was examined and Exhs. A-1 to A-7 were marked. The documentary evidence relied upon by the respondent-claimants reveals the nature of incident and both the drivers referred to supra had their meal and quarrel erupted on the issue of sharing of the cost of chicken and the deceased was beaten black and blue with an iron rod by the other driver and thus the deceased succumbed to the injuries. Exh. A-1 is a certified copy of the F.I.R. in the Cr. No. 9 of 2001 registered under Section 302, Indian Penal Code. Exh. A-2 is the translated version of Exh. A-1, which was written in Marathi language. Exh. A-3 is the final report. Exh. A-4 is the translated version. Exh. A-5 is the requisition of police for post-mortem of the dead body. Exh. A-6 is the driving licence. Exh. R-1 is a photocopy of the insurance policy. Apart from the documentary evidence, the evidence of P.W. 1, the wife of the deceased is also available on record. The Commissioner for Workmen's Compensation had recorded a finding that the incident happened during the course of employment and in view of the policy both the opposite parties were held to be liable to pay the compensation individually and also jointly.

4.Mr. Brij Mohan Singh, the learned Counsel representing the appellant Insurance Company had raised only one question, the question already referred to supra and in all fairness had submitted that the facts do reveal that the resultant death was in the course of employment, but definitely not arising out of employment. Learned Counsel made elaborate submissions on this aspect and had explained the phrases 'in the course of employment' and 'arising out of employment' in detail and had submitted that unless both are established, the appellant Insurance Company cannot be fastened with liability. Strong reliance was placed on Employees' State Insurance Corporation v. Francis De Costa : (1997)ILLJ34SC .

5. Per contra, Mr. Madhav Reddy, the learned Counsel representing respondent claimants submitted that the facts are self-explanatory and it is not in dispute that the death of the deceased was caused by another employee of opposite party No. 1 by hitting with a rod and the incident definitely has a nexus with the duty since the deceased was on duty on the particular day and he was discharging his duties in the course of employment, and at a particular place no doubt he had taken meal along with the other driver and there was some quarrel which had resulted ultimately in his death and hence it cannot be said that the incident is a remote incident or an incident totally unconnected with the duties of the deceased and hence definitely the resultant death is not only in the course of employment, but also arising out of employment, thus satisfying both the ingredients and hence the Commissioner for Workmen's Compensation is well justified in awarding compensation against both the opposite parties, including the Insurance Company the appellant herein. The learned Counsel had also placed reliance on several decisions in this regard.

6. Heard both the Counsel.

7. The short question which in fact is often raised in matters relating to workmen's compensation is whether on facts available on record, death of the deceased can be said to be arising out of employment or not. In the present case, except the evidence of P.W. 1, there is no other oral evidence available on the record. In the application filed claiming compensation, at para 2, the incident was explained in detail wherein it was specifically pleaded that the deceased workman was a driver of the lorry bearing No. AP 9-U 4440 of the opposite party No. 1. The deceased workman along with the cleaner went to Madhya Pradesh on the above said lorry on 22.2.2001 and the said lorry met with accident near Brahmadev and the deceased workman and the cleaner halted there and informed the same to opposite party No. 1. Another lorry (truck) bearing No. AP 9-V 0700 belonging to the opposite party No. 1, driven by Bahadur Khan, came from Delhi and on seeing the lorry (truck) bearing No. AP 9-U 4440 the said Bahadur Khan stopped his truck near to the truck of the deceased workman. On 22.2.2001, at about 7.45 p.m., when the deceased workman was attending his lorry bearing No. AP 9-U 4440, the said Bahadur Khan picked up quarrel with the deceased workman Manipal Reddy and the said Bahadur Khan picked up the jack rod from the lorry of the deceased workman and beat him on the head near the lorry (truck) bearing No. AP 9-U 4440 at Dulhadev temple, within the P.S. limits of Harai, Chhindwara District, Madhya Pradesh State and as a result the deceased workman Manipal Reddy received bleeding injury from his head and fell on the ground and died on the spot. At the time of incident, the deceased workman Manipal Reddy was on duty as driver on the lorry (truck) bearing No. AP 9-U 4440 of opposite party No. 1 and he died in the course of employment.

8. Though P.W. 1 is not an eye-witness to the incident, in the very foundation of the pleading itself, it had been specifically pleaded that during the quarrel due to hitting by a rod, the death had occurred, Exh. A-1 is a certified copy of the F.I.R. in Cr. No. 9 of 2001 registered under Section 302, Indian Penal Code in which this incident was clearly explained. Bahadur Khan himself had reported the incident and Exh. A-2 is the translated version. Exh. A-3 is the final report and Exh. A-4 is the translated version of the former. Exh. A-5 is the requisition of police for post-mortem examination. Exh. A-6 is the driving licence. Thus, even from the documentary evidence, it is clear that the incident had taken place as pleaded in the pleading and in fact the Commissioner for Workmen's Compensation had also recorded a finding to this effect. The learned Counsel for the appellant also in all fairness had submitted that the finding that the incident occurred in the course of employment cannot be seriously disputed since he was on duty on the truck at the relevant time. But however the learned Counsel maintained that this incident, on the admitted facts, cannot be said to be falling within the meaning of the phrase 'arising out of employment'. It is no doubt an unfortunate case where during a private quarrel between two drivers, the deceased Manipal Reddy died. In Challis v. London and South Western Railway Co. (1905) 2 KB 154, the Court of Appeal while dealing with the case of an engine driver while driving the train under a bridge who was killed by a stone wilfully dropped by a boy from the bridge, held:

The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver. In other words, it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the Legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously.

In Nisbet v. Rayne and Burn (1910) 1 KB 689, while dealing with the murder of an insured while he was travelling in a railway to a colliery with a large sum of money for the payment of his employer's workmen, it was held:

That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under Workmen's Compensation Act, 1906. In this case the Court followed its earlier judgment in the case of Chillis (1905) 2 KB 154. In the case of Nisbet, the Court also observed that 'it is contended by the employer that this was not an 'accident' within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word 'accident' negatives the idea of intention: In my opinion, this contention ought not to prevail'. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet.

In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , a two-Judge Bench of the Apex Court had observed as follows:

Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty-bound to have accepted the demand of the fare-paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw, then it cannot be said that the death so caused to the driver of autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case death of deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autorickshaw.

In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja : (1958)IILLJ249SC , the Apex Court had observed:

It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends up to point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable.

Reliance also was placed on General Manager, B.E.S.T. Undertaking, Bombay v. Agnes 1958-65 ACJ 473 (SC). In Bhagubai v. General Manager, Central Railway, V.T. Bombay : AIR1955Bom105 , it was held:

There must be a causal connection between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. The cause contemplated is the proximate cause and not any remote cause. If the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment. The fact that the employee shares that peril with other members of the public is an irrelevant consideration. The peril which he faces must not be something personal to him; the peril must be incidental to his employment. He must not by his own act add to the peril or extend the peril. Once the peril is established, it is for the employer then to establish either that the peril was brought about by the employee himself, that he added or extended the peril, or that the peril was not a general peril but a peril personal to the employee.

In Sumitra Devi v. Executive Engineer, Udar Asthan Irrigation Division, Jahanabad, Gaya : (1997)IIILLJ1058Pat , where a Khalasi employed on casual basis by the Irrigation Department was on duty to guard the regulator at canal when he was murdered, it was held that he was engaged in trade or business of the employer and was a workman and guarding or protecting the canal is always required and that cannot be said to be transitory in nature and the deceased was employed for a particular period of time and he cannot be said to be in employment of casual nature and ultimately it was held that the accident arose out of and in the course of employment. In Cardillo Frank A. v. Liberty Mutual Insurance Co. 330 US 469, the United States Supreme Court had expressed that the words 'arising out of and in the course of employment' are deceptively simple and litigiously prolific. In Superintending Engineer, Parambikulam Aliar Project, Pollachi v. Andammal 1983 ACJ 286 (Madras), where a Luskar 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 and there was nothing on record to show that he had added to the peril, it was held that there was causal 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. In Naima Bibi v. Lodhne Colliery Co. Ltd. 1977 ACJ 430 (Calcutta), where a colliery worker while returning after performing his duty was assaulted by unknown persons in the colliery premises and as a result of which he died at the spot, the Calcutta High Court took the view that he had been at the spot because of his employment and as such the accident had arisen out of and in the course of his employment and the employer was held to be liable to pay the compensation. In Jayamma v. C. Munikrishnappa : 1998(2)KarLJ555 , where a workman employed as a taxi driver was murdered at the place to where he had taken the taxi and the Insurance Company contended that the death was not in the course of the employment and it was a homicidal death and there was no nexus with death and employment, it was held that workman was murdered in the course of employment. Strong reliance was placed on National Insurance Co. Ltd. v. Balawwa : (1994)ILLJ433Kant ; Union of India v. Shantaben 1985 ACJ 818 (Gujarat); United India Insurance Co. Ltd. v. Heerabai 1987 ACJ 949 (MP); and Senior Divisional Personnel Officer, Southern Railway v. Kanagambal : (1995)IILLJ231Mad . Reliance was also placed on Leela Devi v. Ram Lal Rahu ; Salamabegum v. District Branch Manager, Maharashtra State Cooperative Land Development Bank I (1990) ACC 29 (Bom.) : 1990 ACJ 1104 (Bombay); Challapareddy Ranganayakamma v. K. Venkateshwara Rao 3975 ACJ 302 (AP); and M. Bhavaraju v. Y. Savitri 1976 (1) APLJ 23.

9. In Koduri Atchayama v. Palangi Atchamma 1969 ACJ 330 (AP), the facts are as hereunder:

The respondent's husband was one of the employees in the lorry belonging to the appellant carrying quarry material from the quarry site to the work spot of the PWD. His duties were to load material in the lorry, to go along with the same for unloading the material at the work spot. While the lorry was moving, he attempted to hit a rabbit passing on the road and in this attempt he fell down from the lorry and met with the accident which resulted in his death. Respondent filed the application under Section 3 of the Workmen's Compensation Act, claiming compensation for the loss of life of her husband, contending that he met with the accident during the course of employment. The appellant contended, inter alia, that it was not one of the duties of the respondent's husband to hit a rabbit passing on the road, and since the accident occurred while he was hitting the rabbit, it was outside the course of employment and, therefore, he was not liable to pay any compensation to the petitioner under Section 3 of the Act. The Commissioner rejected the contention of the appellant and awarded compensation. It is against this order, the appellant has preferred the appeal contending the view taken by the Commissioner that accident occurred to the respondent's husband was in the course of employment is erroneous.

On the basis of the above facts, it was observed by this Court as follows:

It is not enough that injury should have been sustained by the workman during the period of his employment; it should have been in the course of the employment. The act which resulted in the accident must have some connection with the work for which the workman is employed. Such connection need not be direct. It may be incidental to the duties attached to the work for which he is employed. There should be at least a causal relation between the accident and the duties which he is required to perform by the employer. The act should not be foreign to the employment. The peril which results in injury must be involved by the contract of service, and not alien to it. The workman must have been doing something which is part of his service, though it need not be his actual work; it should be work naturally connected with the class of work and the injury must result from it. There should be nexus between the injury and the work that the workman had to perform.

In New India Assurance Co. Ltd. v. G. Krishna Rao I (1995) ACC 582 (Ori.) : 1995 (2) LLJ 1041 (Ori.), the workman was residing in a hut provided by the employer and the hut caught fire and the workman was burnt alive and when question arose whether the workman died in the course of employment, it was held that the accommodation provided by the employer by itself cannot form basis for a claim for compensation and that the fire in the instant case had no nexus with employment and hence the employer was held to be not liable for compensation.

10. It is no doubt true that at certain times it may be very difficult to draw a dividing line to distinguish on facts as to which acts may fall within the meaning of the phrase 'arising out of employment' and which may not. No doubt, each case depends upon its own facts and circumstances and a careful scrutiny of the factual aspects may be essential while deciding whether a particular act has any nexus with the duty and whether such act or the resultant incident arose in the course of employment. It is suffice to state that the incident or the resultant death must have some nexus with the duty which the worker is expected to discharge and if absolutely there is no nexus at all it cannot be said that the ingredient 'arising out of employment' is satisfied. In the present case, no doubt hair-splitting distinction was drawn between the acts having nexus to duty and also the acts which may not have nexus to the duty at all. In Dover Navigation Co. Ltd. v. Isabella Craig (1940) AC 190, it was observed:

Nothing could be simpler than the words 'arising out of and in the course of 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 employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. 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.

In the decision referred Employees' State Insurance Corporation v. Francis De Costa : (1997)ILLJ34SC , a three-Judge Bench of the Supreme Court had elaborately dealt with both the phrases 'in the course of employment' and 'arising out of employment' and held:

That the respondent No. 1 has suffered a personal injury is not in dispute. The only dispute is whether the injury will amount to 'employment injury' within the meaning of Section 2(8), so as to enable the respondent to claim benefit under the Act. The definition given to 'employment injury' in Sub-section (8) of Section 2 envisages a personal injury to an employee caused by an accident or an occupational disease 'arising out of and in the course of his employment'. Therefore, the employee, in order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in the course of his employment. Both the conditions will have to be fulfilled before he could claim any benefit under the Act. It does not appear that the injury suffered by the employee in the instant case arose in any way out of his employment. The injury was sustained while the employee was on his way to the factory where he was employed. The accident took place one kilometre away from the place of employment. Unless it can be said that his f employment began as soon as he sets out for the factory from his home, it cannot be said that the injury was caused by an accident 'arising out of...his employment'. A road accident may happen my where at any time. But such accident cannot be said to have arisen out of his employment, unless it can be shown that the employee was doing something incidental to his employment.

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 Edn., 1984]. In the context of Section 2(8), the words 'out of indicate that 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 place of employment cannot be said to have its origin in his employment in the factory. The phrase 'out of employment' was construed in the case of South Maitland Railways Private Ltd. v. James 67 CLR 496 where construing the phrase 'out of employment', Strake, J., held 'the words 'out of require that the injury had its origin in the employment.

Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2(8) of the Act. The words 'accident arising out of...his employment' indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment, There is no causal connection between the accident and the employment.

Thus, in view of the ratio laid down by the Supreme Court referred to in Employees' State Insurance Corporation v. Francis De Costa (supra), both the ingredients are to be satisfied. Again, in the self-same decision, the Apex Court at para 29, had observed as follows:

Although the facts of this case are quite dissimilar, the principles laid down in this case are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that, (1) there was an accident; (2) the accident had a causal connection with the employment; and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment.

11. In the present case also, the incident which had happened is a private quarrel between the two drivers and the resultant death happened due to the said incident and on admitted facts I am of the view that there is no nexus or connection with the duties of the workman and the private quarrel between the two drivers which had resulted in the death of the deceased workman. It is no doubt true that it is really unfortunate that there is a loss of life due to the aforesaid incident, but the question is whether even in such cases the Insurance Company can be fastened with liability or not. In view of the binding decision of the Apex Court referred to in Employees' State Insurance Corporation (supra), I am of the considered view that inasmuch as this private quarrel between two drivers which had resulted in the death of one of the drivers, will not fall within the meaning of the phrase 'in the course of employment', the appellant Insurance Company cannot be fastened with liability and in view of the aforesaid binding decision of the three-Judge Bench of the Apex Court referred Employees' State Insurance Coloration v. Francis De Costa (supra), I am left with no other option except to allow the appeal.

12. Accordingly, the appeal is allowed setting aside the order of Commissioner, Workmen's Compensation-cum-Assistant Commissioner Labour, Nalgonda made in W.C. No. 22 of 2001, dated 7.10.2002 but, however, without costs in the facts and circumstances of the case.