Sant Kumar vs Iqabal Ahamad Ansari

Sunil Kumar Sinha, J.—This appeal is filed u/s 30 of the Workmen''s Compensation Act, 1923. It arises out of award dated 5-3-1998 passed by the Commissioner Workmen''s Compensation Act/Labour Court, Bilaspur in Case No. 11/W.C.A./94 (N.F.). The Tribunal has dismissed the claim filed by the appellant for injury sustained by him.

The brief facts, as stated in the claim petition, are that this appellant was employed as a Welder in the workshop of the respondent in the relevant time. On 19-4-1994, he was doing greasing work in mixer machine in the workshop. During the course of his said work, the mixer machine was started by the respondent and ultimately when the appellant saw that the Hapher of the mixer machine is coming down on the head, he tried to remove himself from the said place and in this process, his right-hand was crushed in the gear and ultimately it was amputated from near his shoulder. The claim filed by the appellant before the Tribunal was resisted by the respondent on many grounds. The Tribunal framed various issues in this case and after recording evidence of the parties, dismissed the claim of the appellant holding that the appellant could not establish that the accident took place out of and in course of employment of the appellant.

So far as issue No. 1 is concerned, it comes in the evidence of the appellant that on 18-4-94, he was called by the respondent for performing some works in the mixer machine. It comes vide Para 2 of his evidence that he said that he will not do the work of mixer machine as he is a welder. However, on request of the employer, he agreed to perform the said work and was doing greasing in the mixer machine in the workshop of the respondent, where the accident took place in the above manner.

In the matter of Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, , the Apex Court held that 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 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 "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". The Apex Court said that in other words, there must be a casual 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 consideration must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. Although the onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant, these essentials may be inferred when the facts proved justify the inference. On the one hand, the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. The Apex Court also said that it is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it.

The Apex Court again held in the matter of Regional Director, E.S.I. Corporation and another Vs. Francis De Costa and another, , that 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 the course of employment. The Apex Court said all this by referring to a decision in the matter of Dover Navigation Co. Ltd. v. Isabella Craig 1940 AC 190 : (1939) 4 All ER 558,(referred in Para 28 of the said judgment) that nothing could be simpler than the words ''arising out of and in the course of the 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 the 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.

If apply these principles in the facts of the present case, as stated above, there is ample evidence on record which would show that the appellant was employed as a welder in the workshop of the respondent where the vehicles of Champa Steel Plant, Government Irrigation Department, Champa and other companies were brought for repairing and on the fatal day, the appellant was assigned with the job of greasing a mixer machine by the respondent and when the appellant was performing the said work, the accident took place. In the facts and circumstances, it is clear that the accident arises out of and in course of the employment of the appellant with the respondent.

In the opinion of this Court, the Tribunal grossly cried in law by ignoring evidence and holding that the appellant could not establish that the accident arises out of and in course of employment of the appellant. This finding is set aside. It is held that the accident arises out of and in the course of employment of the appellant.

So far as quantum of compensation is concerned, the case of the appellant shall be classified as the case of total disablement. I am fortified in my views by the judgment of the Apex Court in the matter of Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, . In the said case, there was amputation of left hand of a Carpenter above elbow and the Apex Court said that since the carpenter cannot work with one hand, the disablement was total and not partial. In the case on hand, the right hand of the appellant has been amputated from near the shoulder. Admittedly, the appellant was an ITI trained welder. The welding work cannot be performed from one hand. Therefore, here also the disablement sustained by the appellant is total and not partial. The age of the appellant appears to be 20 years and according to issue No. 2, his monthly wages has been determined by the Tribunal as Rs. 1200/-. Therefore, for the purposes of compensation, his monthly wages shall be Rs. 1000/- and 50% of the said wages would be Rs. 500/-, as the accident took place on 19-4-1994, and it shall be multiplied by the relevant factor, i.e., 224.00 as such, the outcome shall be Rs. 1,12,000/-. On this amount, the appellant shall also be entitled to get interest @ 9 % per annum from the dale of accident till its realization.

In the result, the appeal is allowed. The impugned award passed by the Tribunal is set aside. It is directed that the respondent shall pay to the appellant a sum of Rs. 1,12,000/- as the amount of compensation in the said accident. He will also pay interest @ 9 % per annum on the said amount from the date of accident till its realization, It is further directed that if the amount is not paid/deposited by the respondent within a period of 3 months from today, the interest shall be chargeable @ 12% per annum instead of 9% as awarded above.