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Judgment
The present appeal under Section 30 of the Employees‟ Compensation Act, 1923(formerly known as the Workmen‟s Compensation Act, 1923) filed by the Insurer is directed against the judgment dated 05.03.2019 passed by the learned Commissioner, Employees‟ Compensation, West Tripura, Agartala, in case No.TS(EC) 03 of 2014.
Heard Mr. P. K. Ghosh, learned counsel for the appellant. Also heard Mr. S. Lodh, learned counsel for the claimant-respondent No.1.
BACKGROUND AND RELEVANT FACTS:
3.1. The respondent No.1 instituted a claim application under Section 4, 4-A and 22 of the Employees‟ Compensation Act, 1923 seeking compensation for sustaining grievance injuries during the course of employment under the respondent No.2. He submitted the claim application stating that on 18.04.2013 at about 2300 hrs., while he was driving a vehicle bearing No.TR-01-V-1653 and performing duty under the owner-respondent No.2, on that day at Amtali-Khayerpur bypass steel-bridge, some miscreants had stopped his vehicle and severely had beaten him and had thrown away his body under the bridge. He underwent treatment at AGMC & GBP Hospital initially, but, he was referred to undergo treatment from hospital outside the State of Tripura.
3.2. His wife had lodged a complaint to the Officer-In-Charge of West Agartala Police Station, and on the basis of her complaint, West Agartala P.S. case No.100 of 2013 was registered.
3.3. The claimant-respondent No.1 was treated in Kolkata with effect from 27.04.2013 to 09.05.2013. He was aged about 32 years and he claimed that his monthly salary was of Rs.12,000/-(Rupees twelve thousand) only including fooding and prayed for awarding compensation in accordance with law.
3.4. Being summoned, the appellant-Insurance Company, i.e. SBI General Insurance Company Limited, represented by its Branch Manager at Agartala, contested the case by filing written statement and stated that the claimant-respondent was not entitled to claim any compensation under the Employees‟ Compensation Act for the reason that there was no accident and the claimant-respondent suffered injury due to assault caused by the miscreants.
3.5. On the basis of the aforesaid facts, the learned Commissioner framed the following issues:-
"(a) Whether Dulal Debnath was an employee under Dipak Sutradhar?
(b) Whether Dulal Debnath sustained any injury in course of and arising out of his employment?
(c) Whether the petitioner is entitled to get any compensation, if so, to what extent?
(d) Any other relief, the petitioner is entitled to."
3.6. After considering the evidence and materials on record and having heard the learned counsels, the learned Commissioner awarded compensation of Rs.5,13,300/-(Rupees five lakhs thirteen thousand three hundred) with 12% interest in favour of the claimant-respondent vide judgment dated 05.03.2019.
3.7. Being aggrieved of the said award, the Branch Manager, SBI General Insurance Company Ltd. has preferred the instant appeal before this Court.
SUBMISSIONS OF THE APPELLANT:
4.1. Mr. Ghosh, learned counsel in course of hearing contended that the learned Commissioner has misconstrued the relevant provisions of the Employees‟ Compensation Act. It was a case of assault inflicted by miscreants upon the claimant-respondent which cannot be termed as accident'.
4.2. Mr. Ghosh, learned counsel had laid much emphasis on the charge-sheet submitted by the police before the criminal court, wherein, it was stated that "there was enmity" between the assailants and the claimant-respondent that resulted the assault upon the claimant-respondent.
4.3. Learned counsel for the appellant further contended that the income of the claimant-respondent was not proved since the owner was silent about the salary/income of the claimant-respondent.
4.4. Finally, the learned counsel had urged to set aside the judgment of the learned Commissioner and absolve the appellant-Insurance Company from its liability to pay the awarded amount of compensation.
SUBMISSION OF THE CLAIMANT-RESPONDENT:
5.1. Mr. Lodh, learned counsel appearing for the claimant-respondent firstly contended that the charge-sheet submitted by the police in the criminal court cannot form the basis of awarding or rejecting the claim when raised by any claimant.
5.2. Secondly, his submission was that the term accident' includes any eventualities which may occur during the course of one‟s employment.
5.3. Thirdly, it was contended that while the claimant-respondent was driving his vehicle and discharging his duty, some miscreants had blocked the road, forced him to come out of the vehicle and severely assaulted him and the said incident had occurred arising out of and in the course of his employment.
5.4. Fourthly, the learned counsel contended that the appellant-Insurance company had never raised the point before the learned Commissioner that the instant case was not a case of accident' within the scope and ambit of Employees‟ Compensation Act and for that reason this point cannot be agitated before this Court for the first time.
DISCUSSION AND FINDINGS OF THIS COURT
6.1 On the basis of aforesaid rival submissions, I have perused the evidence and materials on record and also have taken into account the judgment of the learned Commissioner.
6.2. At the outset, in view of the submission of appellant-Insurance company that the instant claim application does not fall within the scope and ambit of Employees‟ Compensation Act, I have noticed, this point was not agitated before the Court of learned Commissioner in course of its adjudication.
6.3. It is further revealed from the record that the appellant-Insurance Company did not adduce any evidence in support of their contentions that there was enmity between the assailants and the claimant-respondent. This submission has no legal foundation. They relied upon the one piece contention made in the charge-sheet as submitted by police agency. Charge-sheet or police report filed under Section 173(2) CrPC is not a substantive piece of evidence. It is a report filed by the investigating officer based on his prima facie finding. Every piece of statement made in such report has to be proved by way of adducing evidence beyond reasonable doubt. In the instant case, the appellant-Insurance company did not make any effort to establish the fact that there was prior enmity between the injured-claimant and the miscreants who assaulted him and the incident had happened out of that enmity and the incident has no relation with the employment of the injured-claimant under the respondent-owner.
6.4. It is settled position of law that pleadings are to be substantiated by adducing evidence in support of a particular fact. As such, the statements or records which were borne out relating to a criminal case, unless and until the same are substantiated by adducing evidence cannot be the determining factor to adjudicate a claim application launched before any statutory Tribunal or Commission, authorized to determine compensation for facing accident arising out of and in course of one‟s employment.
6.5. In the instant case, it is the specific case of the claimant-respondent that, while he was performing his duty under the instruction of his employer-respondent No.2 and while he just crossed the steel-bridge, the miscreants had stopped his vehicle and had seriously assaulted him.
6.6. What is not in dispute in the present case, is that the claimant-respondent was under the employment of the respondent No.2, owner of vehicle No.TR-01-V-1653(Tata Ace pickup) and he was performing his duty as per the instruction of his employer, respondent No.2 herein, and at that time his movement was stopped by some miscreants who had assaulted him severely.
On the aforesaid background, the principal controversy that is called upon to answer by this Court, though not was raised before the learned Commissioner, is as to whether the said assault and sustaining injuries on the person of the claimant-respondent should be termed as accident' within the scope and ambit of Employees‟ Compensation Act(hereinafter referred to as "Act").
The Act postulates that if personal injury is caused to a workman by accident arising out of or in course of the employment, his employer shall be liable to pay compensation in accordance with the provisions laid down in the Act.
In the entire scheme of the Act, the term "accident" is not defined. But, it is now well settled that the expression "accident" generally means some unexpected event happening without design. As pointed out in Halsbury's Laws of England, Edn.2, Vol.34, p.816, to decide whether an occurrence is an accident, it must be regarded from the point of view of the workman who suffers from it, and if it is unexpected and without design on his part, it may be an accident, Fenton v. Thorley L.R. (1903) A.C. 443, Shaik Jafariji v. Shaikh Ismail Manu/NA/0222/ 1936.
That this was an accident in the sense that it was an unlooked-for mishap or untoward event which brought about the personal injury to the workman, cannot be doubted.
The second requisite is whether this accident arose out of and in the course of the deceased workman‟s employment. The term, "arising out of employment" is used in the Act. In Shaik Jafarji(supra), Vivian Bose, J (as he then was) observed thus:-
"An accident of this kind is an ordinary hazard of such an employment. While a man is pouring oil his attention may wander for a moment, or a muscle may give momentarily through fatigue; his attention may be diverted; he may slip; or he may even be careless enough to attempt something else at the same time such as hail a comrade, or throw an article across the room, or extract something from his pocket; an accident can occur in any one of these and many other ways. Of course in most cases it would be due to his own carelessness and negligence; of course he would not be entitled to recover at Common Law. But the whole purport of the Act is to alter that. It would be otiose otherwise. Men who are employed to work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act."
The words, injury‟ and accident‟ in Section 3 of the Act imply the existence of some external factor to cause death apart from internal element of the above.
In Daya Kishan Joshi and Anr. vs. Dynemech Systems Private Limited, reported in (2018) 11 SCC 642, the Supreme Court quite elaborately discussed the issue regarding various nature and scope of injuries or death during the course of and arising out of employment. The Supreme Court in Daya Kishan Joshi(supra) had observed thus:-
"14. English courts have elaborated in great detail on the subject of "arising out of employment" while considering the matters arising out of the English Workmen's Compensation Act, 1897:
14.1. Buckley, L.J., in Pierce v. Provident Clothing and Supply Co. Ltd. [ (1911) 1 KB 997 (CA)] , made the following observations: (KB p. 1003)
"... The words "out of" necessarily involve the idea that the accident arises out of a risk incidental to the employment. An accident arises out of the employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind."
14.2. Lord Buckmaster, in John Stewart and Son (1912) Ltd. v. Longhurst [1917 AC 249 (HL)] , observed that whether a situation arises "out of or in the course of employment" can only be determined on a case-to-case basis: (AC pp. 258-59)
"... Some of the reported cases, which have been fully referred to by the Lord Chancellor, appear to me to have made the same mistake and to have attempted to define a fixed boundary dividing the cases that are within the statute from those that are without. This it is almost impossible to achieve. No authority can with certainty do more than decide whether a particular case upon particular facts is or is not within the meaning of the phrase."
The facts of each case must be examined separately. One case cannot be relied upon to conclusively decide the outcome of the other. Hence, the facts of this case must be examined in light of the context that they are situated in.
14.3.Andrew v. Failsworth Industrial Society Ltd. [ (1904) 2 KB 32 (CA)] , lays down that the accident need not be connected to the work, as long as the employee was in a position that arose out of the employment. Collins, M.R. observed as follows: (KB pp. 34-35)
"... Though [the accident] may not be connected with, or have any relation to, the work the man was doing, yet, if in point of fact the position in which the man was doing the work, and the place he must necessarily occupy whilst doing the work are a position and a place of danger which caused the accident, it may fairly be said that it arose out of the employment, not because of the work, but because of the position."
English courts have also held that injuries to employees on their way back home fall within those "arising out of employment". In Lawrence v. George Matthews (1924) Ltd. [ (1924) Ltd., (1929) 1 KB 1 (CA)] , the deceased was employed as a commercial traveller by coal merchants, who paid him a commission for all orders obtained for them. While on his way home on his motorcycle after completing a trip, he was struck fatally by a falling tree which was blown down by a gale. In proceedings for compensation, the Court of Appeal held by a majority that the accident arose out of the employment of the deceased on the ground that the deceased's employment brought him to a spot which, owing to the existence of the tree, had a quality that resulted in danger. The fact that the tree fell due to forces of nature was immaterial, as the immediate cause of the accident was the falling of the tree.
Indian courts have also expounded upon the phrase "arising out of and in the course of employment" in great detail:
16.1. In BEST Undertaking v. Agnes [AIR 1964 SC 193] , this Court laid down as under: (AIR p. 199, para 12)
"12. Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the courts have agreed that the employment does not necessarily end when the "down tool" signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension as both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employer to use only a particular means of transport extends the area, of the field of employment to the course of the said transport. Though at the beginning the word "duty" has been strictly construed, the later decisions have liberalised this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deal with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except insofar as they laid down the principles of general application. Indeed, some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority." (emphasis supplied)
16.2.Mackinnon Mackenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak [ (1969) 2 SCC 607] is also relevant to understand the meaning of "arising out of employment". Ramaswami, J., delivering the judgment for a three-Judge Bench of this Court, held: (SCC p. 611, para 5)
"5. ... The words "arising out of employment" are understood to mean that "during the course of the 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 employment" is again not confined to the mere nature of the employment. The expression applies to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises "out of 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."
16.3. This Court in ESI Corpn. v. Francis De Costa [ (1996) 6 SCC 1 : 1996 SCC (L&S) 1361] , laid down three principles for the claimants to prove before they can claim compensation under Section 2(8) of the Employees' State Insurance Act, 1948: (SCC p. 13, para 29)
"29. ... (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."
As Section 2(8) of that Act is in pari materia with Section 3(1) of the Act, these principles are relevant for cases under the latter.
16.4. Again, in Union of India v. Surendra Pandey [ (2015) 13 SCC 625 : (2016) 1 SCC (L&S) 266] this Court has explained the principle of notional extension of employment giving examples as under: (SCC p. 631, para 12)
"12. It was also pointed out by Lord Denning in the aforesaid case of R. v. National Insurance Commr., ex p Michael [ (1977) 1 WLR 109 (CA)] that the extension of the meaning of the phrase "in the course of his employment" has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was "reasonably incidental" to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, C.J. in South Maitland Railways Pty. Ltd. v. James [ (1943) 67 CLR 496 : 1943 HCA 5] observed that when the workmen on a hot day in course of their employment had to go for short time to get some cool water to drink so as to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water." (emphasis supplied)"
In Union of India (UOI) vs. Harphool, MANU/RH/0211/1986, the Supreme Court had an occasion to deal with a claim application under the Workmen‟s Compensation Act, 1923 and found that the workman had died due to biting of a snake during the process of loading of stones of the railways and it was during his employment. In that circumstance, the Apex Court held thus:-
"5. The biting by poisonous insect would certainly be injury by accident within Section 3 of the Workmen Compensation Act, since it was during the process of the loading of the stones of the Railway. The accident need not be confined to injury caused by mechanic process or by some vehicles. A bite by snake or poisonous insect during his employment while he was working would also result in the accident and injury by the accident, for the purpose of compensation to workmen under Workmen Compensation Act."
The Orissa High Court in Director (T and M), D.N.K. Project vs. D. Buchitalli, MANU/OR/0298/1986 while examining a situation that the employee concern was coming out of the factory premises after attending his duty in the morning hours, fell down at the main gate and on his way to dispensary he was declared dead. The question arose whether his death could be termed as, "accident arising out of or in course of his employment". The Court after taking into account the definition of Section 3(1) of the Workmen‟s Compensation Act held as under:-
"6. Section 3(1) of the Act, as far as relevant, is extracted hereunder :
If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter;
Provided that.
The most important phrase in the aforesaid section is "arising out of and in course of employment." The said phrase is understood to mean that the injury has resulted during the course of employment 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, i.e., if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed. The expression "arising out of and in course of" used in this section had been considered by a plethora of decisions which pinpoint various facets that arise for consideration before the Commissioner adjudicating a claim for compensation. It has been held in several cases that the said expression which is patterned on the lines of the English statute should not receive a rigid interpretation and this being a beneficial legislation for the workers, should receive a liberal interpretation. It is now well settled that the expression "arising out of employment" means that during the course of the 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. The words "in the course of employment" mean, in the course of the work which the workman is employed to do and which is incidental to it. If the accident occurred on account of a risk which is an incident of the employment, the claim must succeed. If the hazard is implicit in the employment itself, the victim of the same is covered by the Act. The Bombay High Court in the case of Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust, 1954-I-LLJ-614, considered this aspect and held that the tests laid down by Lord Loreburn in the well-known decision of the House of Lords in the case of Clover, Clayton & Co. Ltd. v. Hughes 1910 A.C. 242, were applicable. It is profitable to extract that passage from the judgment of the House of Lords, which was approved by the Bombay High Court :
... In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together.... Looking at it broadly, I say, and free from over-nice conjectures was it the disease that did it, or did the work he was doing help in any material degree.?
In another decision of the Bombay High Court, in the case of Bai Diva Kaluji v. Silver Cotton Mills, Ltd. 1956-I-L.L.J.-740, it has been held that if a workman suffering from heart disease after working for eight hours on a hot day in a mill dies, then it would be proper to hold that he died of accident arising out of and in course of his employment."
I have an occasion to peruse the decision of the Supreme Court in Trustees of the Port of Bombay vs. Yamunabai, MANU/MH/0104/1952, AIR 1952 Bom 382, wherein the Supreme Court had dealt with a condition where the workman was engaged with carpentry work when a bomb had exploded, as a result of which, the workman received injuries and subsequently died. That workman had received personal injuries as a result of an accident arising out of and in the course of the employment. After taking into account various decisions of the English Court it was held that:-
"(11) The question, therefore, is whether it can be said that in this case Vinayak received personal injury as a result of an accident arising out of his employment. On the finding recorded by the Court below it is clear that some unknown person had placed the bomb, & Vinayak was not responsible for the placing of the bomb. That Vinayak was required to do the work at the particular place and at the particular time is not disputed. There was, therefore, a circumstance attending his employment, because at the time and place at which he was employed an explosion occurred, in consequence of which Vinayak received injuries and as a re-suit of which he died. It seems to me, therefore, that the facts of the present case seem to be similar to the facts of the case in 'SIMPSON v. SINCLAIR', (1917) AC 127."
In the instant case, the learned Commissioner after perusal of the evidence and materials on record came to the findings that on 18.04.2013 at about 11.00 P.M. while the injured-claimant, Sri Dulal Debnath was performing his duties as a driver of the owner of the vehicle following his instructions, and while he crossed the steel-bridge of West Pratapgarh over the river Howrah with the vehicle No.TR.01-V-1653(Tata Ace Pick-up), some miscreants stopped his vehicle and snatched away money and thereafter threw him under the bridge after beating him severely.
In view of the aforesaid proved facts and circumstances, in my opinion, there is every reason to consider the incident as "accident" which occurred arising out of and during his employment under the respondent-owner. The incident of assault inflicted upon the claimant by the miscreants was unlooked-for mishap and incidental to the duties he rendered towards his service, which unless engaged to the duty owing to his master, i.e. the owner-respondent No.2, it is reasonable to believe the claimant being the driver of the vehicle belonging to respondent No.2 would not otherwise have suffered. In other words, at the relevant point of time there was causal relationship between the accident and the employment i.e. the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation within the ambit of Employees‟ Compensation Act must succeed. Such kind of unforeseen hazard is implicit in the employment itself and the victim of the same is covered by the "Act". As a corollary, in view of the legal aspects, discussed here-in-above, the Insurance Company is liable to pay compensation to the claimant and the instant appeal deserves to fail.
Accordingly, the appeal filed by Insurance Company stands dismissed being devoid of merit. Judgment of the learned Commissioner is upheld and confirmed.
However, there shall be no order of costs. Send down the LCRs.