Rathinam K. and Others vs Apollo Enterprises and Others

A. Subbulakshmy, J.—Appeal is filed as against the order of the Deputy Commissioner of Labour in W.C. No. 85 of 1987.

Claimants/appellants filed petition u/s 10(1) of the Workmen''s Compensation Act claiming compensation for the death of one Kuppusamy,

husband of the first claimant and father of claimants 2 to 4. The claimants contend that while the deceased Kuppusamy was employed in the first

respondent''s enterprises, during the course of employment, on January 4, 1986, the deceased was involved in an accident as a result of which he

died on January 8, 1986 and so, respondents 1 and 2 are liable to pay compensation.

First respondent filed counter contending that the accident did not occur during the course of employment and it was due to the negligent act of

the deceased himself, but, anyhow, on humanitarian grounds, the Insurance Company paid Rs. 25,000 as compensation to the family of the

deceased and the first respondent is not liable to pay any compensation.

Second respondent did not file any counter. The Deputy Commissioner of Labour, after due enquiry, found that the deceased himself out of his

own will voluntarily, involved in the accident which occurred in the seepage well and it was not in the course of employment and the deceased was

not at all concerned with the seepage well and as he himself involved in the accident out of his own volition, the first respondent cannot be held

liable, but, anyhow, the insurance company, under the group insurance scheme, has paid a sum of Rs. 25,000 to the claimants and the first

respondent also agreed to pay a sum of Rs. 10,000 on humanitarian grounds and he directed the first respondent to deposit a sum of Rs. 10,000

within two weeks.

Aggrieved against that order, the claimants/appellants preferred the present appeal contending that the accident had occurred only in the

premises of the first respondent and it arose out of and during the course of employment and so, the applicants'' claim has to be allowed.

Counsel for the appellants is absent today. Counsel for the first respondent is present and advanced his arguments. He submitted that the

deceased was employed as a building contractor to carry out the building work of second and third floor of the first respondent hospital premises

and he had no work or business at the ground floor and when the accident had occurred, he was not called upon to do any work at the ground

floor which resulted in his death. He further submitted that the deceased casually went to the ground floor to take tea and he heard some noise

there and he came to know that while cleaning the seepage water at the ground floor, due to unforeseen circumstances, one hospital staff and

another worker from outside had fallen into the well and the deceased, out of enthusiasm and with a view to rescue the persons who had fallen into

the well, had broken the security cordon, pushed the security staff and voluntarily jumped into the well without knowing the consequences and the

deceased had no work in that place and he has also not directed or called upon to participate in the rescue operations and as the accident to the

deceased was the result of an added peril to which the workman by his conduct exposed himself which peril was not involved in the normal

performance of the duties of his employment, the first respondent is not liable td pay any compensation. He relies upon the decision of the

Rajasthan High Court in R.B. Moondra and Co. Vs. Mst. Bhanwari and Another, and the decision of the Patna High Court in Bhurangya Coal

Co. Ltd. Vs. Sahebjan Mian and Another, : Relying upon the above decisions, the counsel for the respondent strenuously argued that the deceased

out of his own accord involved himself in the accident and out of his own enthusiasm he had fallen into the well and he did not even obey and yield

to the words of the security staff and so, the first respondent cannot be held liable.

Admittedly, the accident had occurred in the seepage well when it was being cleaned and the deceased had come down to the ground floor

during the tea break to take tea and the deceased heard some noise from one of the seepage wells that were being cleaned and he immediately

went there and while rescuing the workers from the well, he fell inside the well and fell unconscious and he was taken out and admitted in the first

respondent hospital and then he died. The Deputy Commissioner of Labour relied upon the evidence of R.Ws. 1 and 2 who had spoken that the

deceased, out of enthusiasm and with a view to rescue the persons who had fallen into the well, involved himself in the accident and died. The first

respondent contends that the deceased was engaged in the specific business of carrying out the construction work in the additional floors of the

hospital and he had volunteered to help somebody and he need not have run to the rescue of the persons engaged in the drainage cleaning work

when there were several others attending on the rescue work near the seepage water tank and the deceased without foreseeing the dangers of

entering the seepage water well and without adopting the precautions had just volunteered and acted according to his wish at that time and

involved himself in the accident and the act which caused the death of the deceased is a voluntary one of the deceased when the deceased was

never called upon to do such work and so, the first respondent cannot in any way be held liable to pay compensation to the death of the deceased

in that accident.

Admittedly, the deceased was employed only for the construction work in the additional floors of the hospital and only when he came to the

ground floor to take tea, he heard the noise from the seepage well and he went to rescue the persons who had fallen into the seepage well which

was not warranted and the deceased was not at all concerned with that work. While attending the construction work for which the deceased was

employed if the accident had occurred, then, of course, it can be contended that the first respondent is liable. During the tea break, the deceased

had come to the ground floor and he heard some noise and voluntarily attended to the rescue work in the seepage well and the accident which

occurred at that time cannot, at any rate, be said to have occurred during the course of employment.

The Rajasthan High Court has held in R.B. Moondra & Co. v. Bhanwari, (supra), that -

The expression ""arising out of employment"" is not confined to the ""nature of employment"" but applies to the employment as such to its nature, its

conditions, its obligations, and its incidents. Therefore, to find whether the death was caused by added peril, the relevant enquiry to make is

whether the thing was within the sphere of employment and incidental to it. Whether it was in the interest of the work of the employer and was

simply done carelessly or negligently. If the answer to the above is in the affirmative, then the accident would be said to be out of and in the course

of employment and the plea of added peril would fail. On the other hand if the answer is in the negative and if it is found that thing was foreign to

the scope of employment, i. e., something to which the workman voluntarily exposed himself not about the business of the employer but about his

own business then it would not be out of employment and it would be a case of added peril.

The Patna High Court has held in Bhurangiya Coal Co. v. Sahebjan (supra) that-

The principle of added peril contemplates that if a workman while doing his master''s work undertakes to do something which he is not ordinarily

called upon to do and which involves extra danger he cannot hold his master liable for the risks arising therefrom. This doctrine, therefore, comes

into play only when the workman is at the time of meeting the accident performing his duty.

The decisions cited supra enunciates that if a workman, while doing his work undertakes to do something which he is not ordinarily called upon

to do and which involves extra danger he cannot hold his master liable for the risks arising therefrom. In the case on hand, the deceased, out of his

own volition went and attended to the rescuing work in the seepage well which he was not called upon by the employer and with which kind of

work the deceased was not at all concerned and as the deceased out of his own volition voluntarily attended to do the rescuing work in the

seepage well, it is a case of added peril and he cannot hold the first respondent liable to pay compensation. But, anyhow, as seen from the order of

the Deputy Commissioner of Labour, the insurance company, under the group insurance scheme has already paid a sum of Rs. 25,000 to the

claimants and out of humanitarian grounds, the first respondent has also agreed to deposit a sum of Rs. 10,000 and the Commissioner has rightly

directed the first respondent to deposit the said sum.

I find that the finding of the Deputy Commissioner of Labour does not warrant any interference of this Court. The finding of the Deputy

Commissioner of Labour is perfectly justified. I see no merit or substance in the appeal. In the result, the appeal fails and is dismissed. No costs.