N. Sheenivasa Rau, J.
1. The Appellant was the owner of a motor lorry. The respondent is the father of one Annayya who died on 19-3-1956 in consequence of injuries sustained by him when the lorry had been taken out for bringing a load of stones. The Respondent claimed compensation as a dependent of Annayya under the Workmen's Compensation Act on the ground that the fatal accident arose out of and in the course of Annayya's employment as a cleaner of the lorry under the Appellant., It was contended by the Appellant that Annayya had not been his employee and that the accident had not arisen out of and in the course of employment. The Commissioner for Workmen's Compensation, however, upheld the claim and awarded compensation on the basis that Annayya was getting monthly wages of Rs. 60/-.
2. In this appeal though the Appellant challenged the correctness of the Commissioner's finding that Annayya was a workman under the Appellant and the quantum of compensation awarded, the learned Counsel for the Appellant has not pressed these two points and has confined his arguments to the question whether the accident arose out of and in the course of employment.
3. It is not disputed that the fatal accident occurred while the lorry had been taken out to the neighbourhood of a place called Thrukarahatti for transporting stones. The version put forward on behalf of the Appellant was that Annayya who had accompanied the lorry went away from the Spoil where the loading was taking place saying that be wanted to answer calls of nature, that he returned without being noticed either by the driver or the labourers who had gone alongwith the lorry to do the loading, that he got underneath the lorry and went to sleep there, that the driver and the labourers shouted far Annayya to take him along with them after the work of loading was over, that Annayya did not make his appearance, that they thought he would join the lorry at a shop situated nearby at the roadside that the driver started the lorry on the return journey when some obstruction was felt and they heard the cries of Annayya whom they found injured by one of the wheels of the lorry passing over a part of his body.
According to the Respondent the injuries must have occurred while Annayya tried to start the engine handle when, owing to some mischance the lorry moved forward and hit Annayya. The Commissioner disbelieved the version put forward by the Appellant, thought that the probabilities were in favour of the Respondent's version, but holding that it was not possible to state the exact manner in which the injuries were caused to Annayya still Opined that the circumstances of the case showed that Annayya suffered a fatal injury by doing something in his capacity as the cleaner of the lorry and that the accident, therefore, arose out cf and in the course of Annayya's employment.
4. The Commissioner's decision is liable to be interfered with only when a substantial question of law is involved in the appeal. The above finding of the Commissioner, viz., that the accident arose out of and in the course of Annayya's employment is prima facie a finding of fact.
It is urged by the learned Advocate for the Appellant that the Commissioner has grossly mis appreciated the evidence adduced by the Appellant in to-tally rejecting it even though the Appellant's witnesses have given a cogent and consistent version and that version is supported by the dying declaration of the deceased and is not inconsistent with the media cal evidence in regard to the injuries and that even otherwise as the burden lay upon the Claimant to establish that the accident arose out of and in the course of employment of the deceased and as no evidence has been adduced by the Respondent, the claim has to fail.
5. It is no doubt true that according to the material on record the only persons present on the scene were the driver of the lorry and the labourers and that all of them have spoken in support of the appellant's version. It is also true that the dying declaration of the deceased recorded on the same day by a Magistrate supports the version. But this does not however mean that that version had to be accepted without scrutiny by the Commissioner.
The accident occurred in the early part of the afternoon and the loading of stones did not occupy much time. The Commissioner has taken the view that it was very unlikely in these circumstances, that the deceased would have thought of going to sleep or would have chosen the space underneath the lorry as a place for taking rest or that the shouting of the driver and of the labourers would not have aroused him from his sleep.
He has also borne in mind the fact that the driver's mind would naturally be exerted in avoiding the consequences to himself of the accident and the fact that his fellow employees would be sufficiently interested to support a version which would exonerate the driver. He has also taken the view that the dying declaration of the deceased exonerating the driver must have been induced in the same circumstances.
He refers to the deceased's statement that the driver did not observe the deceased creeping under the lorry as a tell-tale statement, as the deceased could not have known whether the driver did nor did not notice that act. As regards the medical evidence, the Medical Officer examined as P. W. 7 has no doubt stated in cross-examination that if the man was lying under the lorry and the wheel pressed against the right portion of the body, when the wheels moved, an injury like the one on the deceased's body could also have been caused.
But he has stated in examination-in-chief that if the hind wheel of the lorry had passed over the abdomen there would have been injuries to other organs also. A question was raised in the course of arguments as to the admissibility of the witness's evidence as he was not the Doctor who treated the deceased soon after the accident or conducted the post mortem examination and as his evidence is based upon the contents of the post mortem certificate granted by the Doctor who conducted the examination.
If the evidence is inadmissible it cannot be taken into consideration at all. If on the other hand it has to be treated as the evidence of an expert interpreting; the data furnished by the post mortem certificate such evidence was part of the evidence which the Commissioner had to take into consideration in arriving at his own conclusion.
It may also be mentioned that the Claimant, in the course of his evidence, has stated that the deceased told him that the lorry dashed against him when, after he started the lorry using the starter the lorry moved, that he was hit by the bumper on the right side of the lorry and that he was told (presumably by the driver of the Appellant) that he should not mention these facts to the authorities or others and that he would be looked after by the Appellant.
The Commissioner has not referred to this part of the claimant's deposition, but ail this was material available to him and, if the Commissioner, after weighing all this evidence came to the conclusion that the version put forward by the Appellant was wholly improbable and not creditworthy, it appears to me that he was entirely within his province in doing so and I see nothing in the lecture of perversity or gross misappreciation of evidence in such a conclusion being arrived at.
6. It is contended, however, by the learned Advocate for the Appellant that even if the Appellant's version should fall to the ground the Respondent cannot succeed unless he discharges the burden that lies upon him to show that the accident arose outof and in the course of his son's employment. It has already been mentioned above that the only persons present at the time of the occurrence were the driver and the labourers and in the very nature of things the Respondent has not been able to adduce any positive evidence as to the manner in which the accident occurred except the statement made to him by his son which has been referred to above.
The Statute (Workmen's Compensation Act) does not itself raise any presumption in the matter and it follows that when a claim is made under the Act, the burden lies upon the claimant to make out the necessary ingredients. In this case, the Claimant has to establish that the accident arose in the course of the deceased's employment as also that it arose out of the employment. The finding of the Commissioner that the deceased was employed by the Appellant as a cleaner and that he was working in. that capacity on the date of the accident has not been challenged at the time of arguments before us. Thus the fact that the accident arose in the course of the deceased's employment must be regarded as having been established. The question for consideration is whether the accident 'arose out of the employment,
7. The learned Advocate for the Appellant has drawn our attention to certain passages in Halsbury's Law of England, (Lord Hailsham Edition Vol. 34). They are:
'The burden of proof both that the accident arose out of and in the course of the employment rests in the first place upon the workman or his dependants.....'
If the proved facts give rise to conflicting inferences of equal probability, so that the choice between them can only be arrived at by what amounts to a guess, then such a guess, though called an inference, arrived at in favour of the applicant will be set aside.'
The words 'arising out of the employment' means that, during the course of the employment, injury has resulted from some risk incident 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'.
''Where the workman, though during a time when the course of his employment is subsisting, docs something entirely for his own purposes and thereby incurs a risk which causes an accident, he is not entitled to compensation'.
'If the workman goes outside the sphere of his employment as defined by his employee he is not generally entitled to compensation if he sustains an accident whilst thus acting'.
'If a workman sustains an acculent whilst he is doing an act which is within his sphere of employ-ment, the mere fact that he has acted negligently or failed to adopt the safest method of working will not deprive him of compensation. Where, however, whether from recklessness or from any other reason a workman does something which it was no part of his employment to do, & thereby incurs a risk to which he was neither required nor authorised to expose himself an accident so caused will not arise out of the employment''.
The above extracts may be taken as substantially representing the rules that govern the matter, but what is suggested on the strength of these passages is that as long as the possibility of the accident hav-ing arisen outside the scope of employment cannot be excluded the Claimant has to fail. It is difficult to see any warrant for such a suggestion in the above I passages. It is next contended that if the probabilities are equally balanced, even then the Claimant has to fail.
This, no doubt, is supported by the above passages and, indeed, logically follows the proposition that the initial burden rests on the Claimant. In this connection the learned Advocate for the Appellant has drawn our attention to the decision reported in Steel Products Ltd. v. Amelda, : AIR1951Cal145 (A). That was a case in which it was found that the workman, a fitter, after measuring something on an almirah, went apparently outside to start work, fell down and was taken to the hospital and according to the medical evidence it turned out to be a case of cerebral thrombosis with progressive cerebral oedema.
It could not, however be stated whether the fall preceded the attack of cerebral thrombosis or whether the attack caused the fall. In the latter case the death could not be regarded as due 1o an accident as there was nothing to connect the attack with what the workman was doing. In the former case, the onset of the attack might be due to fall which occurred out of what he was doing as an employee. The Court held that as the facts were entirely consistent with both the possibilities and it was quite impossible to say which of those two alternative was the more probable the claim had to fail.
8. It is suggested by the learned Advocate for the Appellant that the accident which occurred in the case on hand is consistent with both the Claimant's version and the employer's version and that on the basis of the principle indicated in the above decision the Claimant has to fail. It may at once be stated that no question of two equally possible versions arises in this case since it has been found that the Appellant's version is not true. The only question, therefore, is whether, apart from that version, the circumstances of the case justify the inference that the accident arose out of the employment,
9. The learned Advocate has also relied on two decisions reported in Bender v. Owners of Steamship Zent, 1909-2 KB 41 (B) and Marshall v. Owners of Steamship Wild Rose, (1909) 2 KB 46 (C). In the first case, the chief cook and baker of a steamship was lost overboard. The weather was fine at the time, the ship was steady and there was a four feet rail and bulwark all round. There was no suggestion that any portion of the man's duty would lead him to a position of danger on the ship. It was held that there was no evidence which would enable the court to draw the necessary inference that the accident causing death arose 'out of' as well as in the course of the employment. In the other case, the second engineer of a ship who had gone out on deck for a breath of fresh air was missed at midnight.
The next morning he was found drowned. It was held that though the accident occurred in the course of the deceased's employment, it had not been established that it arose out of his employment since there was nothing to indicate that bis duty would take him to the place where the accident must have occurred. It is suggested on the strength of these two cases that in the present case also no evidence has been let in by the Claimant to show that the accident is attributable to anything done by the deceased in connection with his employment.
10. It is seen, however, that in each of these cases the circumstances indicated that the duties of the workman did not normally expose him to the risk which resulted in the fatal accident. In the case on hand, the point for consideration is whether the workman's presence at the place of accident was normally attributable to his duties.
11. On the other hand, the learned Advocate for the Respondent has relied upon the decision reported in Vishram Yesu v. Dadsbhoy Hormasji and Co., AIR 1942 Bom 175 (D). That was a case in which a khalasi employed on a barge went to s'eep at night on one of the hatches in the barge and when his companion woke up he was found to be missing and later on his body was discovered in the dock where the barge had been stationed. It was in evidence that the khalasis had to sleep either in the rooms allotted to them by the employers when there was no work at night or on the hatches when there was work at night.
It was held that the accident arose out of the employment since the deceased was at a place where he was discharging his duties to his employers. This apparently has reference to the fact that the khalasi was sleeping in the hatch and not in a room since he had to be ready for work during the course of the night. The learned Advocate has also referred to the case reported in Astley v. R. Evans & Co. Ltd., (1911) 1 K. B. 1036 (E). That was a case in which the brakes man of a train that was running buffer to buffer with another train towards a siding point endeavoured to climb from the truck in which he was riding on to the brake van of the train in front of his train and in doing so fell and was killed. It was urged for the employer that in trying to climb on the brake van of the train in front the workman was doing something which he was not called upon to do in the course of his employment and had needlessly exposed himself to a risk.
This contention was not accepted. An examination of the decision shows that it turned upon the view taken by the learned Judges on the question whether the particular act was reasonable or not and in fact one of the Judges took a different view. The learned Advocate, however, relies on this decision for the enunciation of some principles by Fletcher Moulten, L. J. The passage reads as follows:
'What then is the proper presumption in the case of death which is due to the dangers of the employment and which occurs to a person who is engaged in it, but where from the nature of the case no direct evidence can possibly be obtained as to the events immediately preceding the accident? In my opinion, the principle that we ought to apply to the presumption in such a case is, that where the workman is shewn to have been engaged in his employer's work and nothing else during the period prior to the accident, and the accident occurs by reason of his doing an act which is consistent with his still continuing to be doing that work, the Proper presumption is that he did what led to the accident in continuing his employer's work, and not that he had ceased to do his employer's work and had commenced to do something for his own purposes. Inother words, where the workman is engaged in his employer's work up to his death and the last acts known are consistent with the continuance of that work, the onus is upon the person who alleges a cessation of his work for his employer to prove it'.
This, if I may say so with respect, is a fair and reasonable rule, based as it is on the principle of continuity and it is in no way inconsistent with the principles referred to earlier. Relying on the above passage it is suggested for the Respondent that as the deceased went with the lorry in the discharge of his duties it must be presumed even in the absence of any evidence on the Claimant's side that the accident occurred when the deceased was discharging his duties to his employer and that, as the Appellant's version as to the circumstances of the accident is disbelieved, the presumption stands unrebutted.
12. In the light of the above discussion, it appears to me that the circumstances of the case leave no room for doubt that the accident must bo regarded as having occurred while the deceased was discharging his duty as a workman. He was a cleaner attached to the lorry. No evidence has been given in the case as to what the exact duties of a cleaner are. But the evidence, adduced on both sides makes it clear that his work consisted not merely of cleaning the lorry but of acting as a handyman accompanying the lorry. Indeed, the position taken up by both the Counsel in the course of arguments was that the duties of a cleaner of a lorry were analogous to those of a conductor in a passenger vehicle. It was therefore part of the duty of the deceased to be in the lorry whenever it was on the road and to be by its side to do whatever work was entailed in the work of transport. The deceased went from Mercara to the spot where the stones had to be loaded and stayed by the side of the lorry after arriving at the spot in the discharge of his duty.
It is not disputed that the injuries are attributable to some mischance associated with the working of the lorry. Even if the particular circumstances under which the accident occurred and the injuries were sustained are not established, it is beyond doubt that the deceased sustained the injuries when he was present on the spot in discharge of his duty as a workman. In other words the accident 'arose out of his employment. It appears to me that it is not necessary to establish as suggested by the learned Advocate for the Appellant, that it should be shown that the workman was engaged in 'doing' something.
There is no basis in principle or in the wording of the section for the proposition that the workman should be engaged in some positive activity at the time of the accident and that the accident should be related to such activity. The presence of the workman on the spot at the time of the accident, if such presence itself was attributable to the discharge of his duty is enough to show that the accident arose out of his employment. It will he remembered that in the AIR 1942 Bom 175 (D), the khalasi was sleeping on one of the hatches so as to be ready for work whenever the need for it should occur in the night. It was held that his location on the hatch in those circumstances must be regarded as in the discharge of his duty as a workman. The same principle is found illustrated in the observations tions of Farwell, L. J. in (1909) 2 KB 46 (C) mentioned above:
'If an ordinary sailor is a member of the watch and is on duty during the night and disappears, the inference might fairly be drawn that he died from an accident arising out of his employment. But if, on the other hand, he was not a member of the watch, & was down below and came up on deck when he was not required for the purpose of any duty to be performed on tie deck and disappeared without knowing anything else, it seems to mo that there is absolutely nothing from which any court could draw the inference that he died from an accident arising out of his employment.
The presence of the deceased in the proximity of the lorry when it had been taken there for the purpose of loading stones could not be attributed to anything other than the discharge of his duty and in the absence of any credible evidence that at the time of the accident the deceased was engaged in anything outside the scope of his employment, the accident must be held to have arisen out of his employment.
13. There is thus no reason to interfere with the decision of the Commissioner. This appeal is accordingly dismissed with costs.
S.R. Das Gupta, C.J.
14. I agree.
15. Appeal dismissed.