I.C. Bhatt, J.
1. The appellants-applicants, who are the heirs of the deceased Chana Hira had filed Workmen's Compensation Case No. 21 of 1977 in the Court of the Commissioner for the Workmen's Compensation Act, Kutch at Bhuj (hereinafter referred to as the Commissioner) against one Shah Karsan Lakha, for compensation of Rs. 19,200/- for the death of Chana Hira. The brief facts leading to the present appeal are as under:
Deceased Chana Hira Jesar was employed by the opponent who had gone with the opponent's party in Truck No. GTY-2825, on 22-5-1977 from Bhachau to Kheroi village. The opponent was present at the time of the incident nearby the truck where the deceased was discharging his duties. At that time all of sudden a serpent came out and bit the deceased at the left foot. It is the cause of the appellants that the opponent, though he was personally present there, did not take care for speedy action for medical treatment. They stated that the opponent did not take the deceased immediately to the hospital and waited till the truck was loaded, and only after the truck was fully loaded the deceased was removed to Bhachau Hospital. From Bhachau the deceased was removed to Bhuj District Hospital, where he died during the treatment on 23-5-1977. According to the applicant, the death of the deceased took place on account of gross negligence of the opponent. According to the applicants the deceased was earning Rs. 300/ - per month and as he was on duty, the applicants-appellants filed the said application to recover the sum of Rs. 19,200/- by way of compensation.
2. The opponent filed Written Statement, Ex. 12, and denied that the deceased Chana Hira Jesar was his servant and as per his order had gone with the truck No. GTY 2825 on 22-5-1977 and that the goods were being loaded in his presence. He denied that the deceased died as a result of his negligence. He also denied the other allegations and mainly contended that the deceased was not the workman and he was not the employee of the deponent and therefore, the applicants were not entitled to any compensation under the Workmen's Compensation Act.
3. In view of the various contentions raised by the parties, the Commissioner framed issues at Ex. 13 and ultimately came to the conclusion that the deceased Chana Hira was in the employment 'of the opponent. However, the Commissioner came to the conclusion that the deceased was not bitten by the snake while the deceased was on duty and that the deceased did not expire while he was discharging duty in the employment of the opponent and ultimately the Commissioner rejected the application of the appellants by his judgment and award dated 7-9-1978. Being aggrieved by the said judgment and Award of the Commissioner, the appellants have filed this First Appeal.
4. The learned Counsel Mr. D.D. Vyas, for the appellants has mainly contended that in view of the finding of the Commissioner that the deceased was in the employment of the opponent, the Commissioner was not right in coming to the conclusion that the deceased was not on duty at the relevant time and therefore, on this aspect of the matter, the learned Counsel has taken me through the entire evidence on the record of the case and has submitted that in view of the evidence on the record of the case, it is amply proved that the serpent bit Chana while he was loading the truck and, therefore, as per the definition in Section 3 of the Act, it should have been held that the deceased had met with an incident arising out of and in the course of his employment with the opponent and therefore, the applicants were entitled to get the compensation with interest and penalty.
5. Mr. P.V. Hathi, learned Counsel appearing for the opponent, on the other hand, has contended that the finding of the learned Commissioner is correct and the application has been rightly rejected by the Commissioner and after considering the entire evidence on record this Court should not disturb the finding of fact and the appeal should be dismissed. Mr. Hathi has further contended that the burden of proof to show that the deceased was a workman under the Act and that the accident arose out of and in the course of the employment of the deceased with the opponent, is on the appellants-applicants. The learned Counsel Mr. Hathi submitted that the appellants have failed to discharge that burden and therefore, the appeal should be dismissed.
6. Now, in this case, the Commissioner, after appreciating of evidence on record, has come to a definite conclusion that the deceased Chana was employed by the opponent on the date of incident for loading work of cotton and cotton pods in the truck hired by the opponent and that the deceased Chana Hira was bitten by a serpent but the Commissioner held that it was not proved that while loading the truck the deceased was bitten by the serpent. The Commissioner came to the conclusion that the work of loading of truck was already over and that the accident had taken place at a distance from the truck while the deceased was returning after breakfast to go to the truck. The learned Commissioner therefore, ultimately dismissed the application for compenation. In view of the fact that the opponent has not challenged that finding of the Commissioner on issue No. 1 that the appellants proved that the deceased Chana Hira was in the employment of the opponent-respondent, the only question for determination in this appeal remains whether the deceased was bitten by the serpent while the deceased was on duty and accident occurred during the course of this employment with the opponent.
7. The evidence of Sumar Mamad, one of the labourers, is that they had gone with the truck for loading cotton pods to Kheroi; that the opponent has engaged them; that Chana was also there; that snake bit Chana in the way while he was returning with bundle of cotton pods; that Chana raised cries so they went there; that Karsan came there and then Chana was taken to Bhachau. In the cross-examination it was suggested to this witness that at the time of accident he was serving with Vijay Cotton Mills. However, this witness has denied this suggestion. And has stated that on the date of incident he was not serving with Vijay Cotton Mills. The learned Commissioner has not relied upon the evidence of this witness on the ground that he had not seen the actual happening of the incident and that he appears to be a chance witness. The other witness is Mamad Juma. This witness has stated that they had been to Kheroi in the truck at the say of the opponent and 7 to 8 labourers were there. Chanabhai was one of the labourers. According to this witness, they had loaded the truck to some extent and then the work was stopped. This witness stated that Chanabhai was going to see the truck and a serpent bit him; thereupon Chana cried and told that serpent bit him. In the cross-examination this witness has stated that he did not know that Chana was going to his 'vevais' place and serpent bit him. He has further stated that Karsanbhai was not present there. Now, the evidence of witness No. 2-Umedlal Velji is to the effect that the truck was taken to Kheroi; that he was with the truck and labourers were there, but, he did not know them. This witness has further stated that after putting the truck for loading the cotton pods he and the driver had gone to take a round. According to this witness when they were returning towards the truck after breakfast, at a distance of 50, to 60' some reptile bit him. He has stated that he was not present at that time and Chana had told him this. Therefore, considering this evidence the Commissioner was perfectly right in coming to the finding that the deceased was employed by the opponent for the purpose of loading cotton pods in the truck hired by the opponent. Moreover, relying on the evidence of Sumar Mamad witness No. 3 and Mamad Juma - witness No. 4 one can safely come to the conclusion that the deceased received the injury arising out of and in the course of his employment with the opponent, in view of the fact that Sumar Mamad has definitely stated that while the deceased was returning with the bundle of cotton pods he was bitten by the snake, Similarly, Mamad Juma, witness No. 4 has clearly stated that they had loaded the truck to some extent and thereafter they stopped the work; that 20 to 25 bales of cotton were loaded in the truck and at that time Chanabhai was going to see the truck and serpent bit him. Therefore, in view of the categorical statements there is no justification to reject the evidence of these two witnesses. More particularly Mamad's evidence cannot be rejected. His presence is admitted even by the opponent in his cross-examination. However, the opponent has denied the presence of other labourers including Chana. If the presence of Mamad is admitted and if according to Mamad, deceased Chana was going to see the truck and at that time serpent bit him, this would clearly amount to an accident arising out of and in the course of his employment with the opponent. The learned Commissioner has already held that the deceased was in the employment of the opponent and therefore, in the present Appeal I am not referring to the evidence, so far as that part is concerned. In view of this position, it is established that the appellant applicants will be entitled to compensation because from the evidence on record it is clearly established that the deceased Chana met with the accident arising out of and in the course of his employment. However, Mr. Hathi, contended that the accident did not arise out of and in the course of his employment with the opponent, mainly on the ground that the serpent bit the deceased while he was off duty and when he was returning after breakfast and was not actually working. It is difficult to imagine that merely because the deceased-employee was returning after breakfast and at that time the serpent bit him, the accident did not arise during the course of his employment with the opponent. Mr. Hathi's submissions have no substance in view of the authorities referred to hereinbelow. I may refer to a decision of a Division Bench in Bhagubhai v. General Manager, Central Railway, V.T. Bombay : AIR1955Bom105 , the relevant portion of which reads as under:
(2). Now, it is clear that 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. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have clearly laid down that 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. It is now well settled that the fact the employee shares that peril with other member of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to the employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril a causal connection is established between the employment and the accident.
In this particular case what is established is that the employee while in the course of his employment found himself in a spot where he was assuited and stabbed to death. He was in the place where he was murdered by reason of his employment. He would have been safely in his bed but for the fact that he had to join duty, and he had pass this spot in order to join his duty. Therefore, the connection between the employment and the accident is established. There is no evidence in this case that the employee in any way added to the peril. There is no evidence that he was stabbed because the assailant wanted to stab him and not anybody else. It was suggested in the evidence that the employee was also a money-lender apart from being a mukadam in the service of the railway company. But the point was not pursued and it was not proved that by reason of his being a money-lender he had any enemies who were likely to fall upon him and do him to death.
Mr. Desai, who appears for the railway company has argued that a railway servant was prohibited from doing any other business. But it is not established that by his doing this prohibited business he brought upon himself the peril of being murdered.
It was further observed by Chagla, C.J. in paragraph 4 of the aforesaid judgment that-
(4) Both these decisions are really based upon the leading English case reported in Thorn or Simpson v. Sinclair 1917 AC 127 (C). In that case a woman employed by a fish-curor, while working in a shed belonging to her employer, was injured by the fall of a wall which was being built on the property of an adjoining proprietor, with the result that the roof of the shed collapsed and the worman was buried under the wreckage and the House of Lords held that the accident arose out of her employment, and the principle is well stated by Lord Shaw (p. 142):.In short, my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment'. The expression, in my opinion, applies to the employment as such - to its nature, its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply. If the peril which he encountered was not an added peril produced, by the workman himself, as in the case of -Plumb v. Coliden Flour Mills Co. 1914 AC 62 (D) and - Barnes v. Nunnery Colliery Co. 1912 AC 44(E) in this House, then a case for compensation under the statute appears to arise.Viscount Haldane also puts the case very simply (P.136)-...If, therefore, the language in question were to be construed upon principle and apart from authorities I should be prepared to hold that it was satisfied where, as here, it has been established as a fact that it was as arising out of her employment that the appellant was under the roof by the falling of which she was injured.' To apply that test to the facts of this case, it arose out of the employment of the deceased that he found himself at a spot where he was assaulted and murdered.
8. Similar view has also been taken by D.A. Desai, J. (as he then was) in F. A. No. 297 of 1970 decided on 7-2-1973. (This judgment has been confirmed by a Division Bench of this Court in L.P.A. No. 158 of 1973). In that case the deceased Mackwan was serving as a night incharge at Nadiad locoshed and his ordinary duty hours were from 8-00 p.m. to 8-00 a.m. On 23-7-1967 the deceased was required to attend duty at about 4-00 p.m. At about 5-00 p.m. the deceased, who was suffering pulmonary tuberculosis, vomitted blood and fell down in the locoshed and ultimately died. In that case it was argued that there was no causal connection between the injury and the accident and therefore, it cannot be said that the accident occurred out of and in the course of the employment. In that case it is held that it was established that the deceased was suffering from pulmonary tuberculosis for a period of one year prior to the date of his death. The decesed went to the place of his service at 4-00 p.m. It was natural to assume that he started doing his work. A man with brittle health, suffering from tuberculosis would not be able to stand any extra strain. If after working for about half an hour he vomitted blood, it is safe to presume that strain on the workman must have accelerated his death and the strain must be so high that he succumbed soon after vomitting blood. In these circumstances, causal connection required to be established between injury and accident and accident and work done in the course of employment is satisfactorily established and the dependents would be entitled to compensation.
9. In the present case causal connection is satisfactorily established by the appellants. Whether the deceased was actually working or was returning after breakfast would be immaterial in the present case because the deceased had been at that particular place as he had to be there by reason of his employment with the opponent. That the deceased had been at village Kharoi by reason of his employment with the opponent, otherwise he had no reason to be there. He had loaded cotton pods and during the course of his work, when he was near the truck the deceased met with the accident. In view of the facts and circumstances of the case it is difficult to imagine that because the employee was returning after breakfast and at that time the serpent bit him the accident did not arise out of and in the course of the employment. Thus, the proximate connection between the injury and the employment is satisfactorily established by the evidence on record. I, therefore, hold that the appellants are entitled to compensation.
10. This brings me to the question of compensation. The widow of the deceased Jiviben, Ex. 30, witness No. 1 has clearly deposed that her husband was working with the opponent. He was doing agricultural work and dealing in cotton pods. He was doing agricultural work of opponent only. She has further stated that fixed pay was there; daily she used to get Rs. 10/-. She has stated that she used to go to take the pay. She has further deposed that her husband used to attend on the trucks for loading cotton pods. During cross-examination, a suggestion was made that her husband was not working with the opponent and that her husband used to do labour work only. She has denied this suggestion that her husband was not working with the opponent. In the cross-examination no suggestion is made that the deceased was not earning Rs. 10/- a day. From the evidence of this witness it is clear that the deceased was getting Rs. 10/ - per day and he was receiving the pay monthly. There is no challenge to this statement of the witness in this case. On the other hand, opponent Karsan Lakha has denied that the deceased was his employee. He has denied that the deceased was serving with him since 30 years at the daily wages of Rs. 10/-. There is no evidence on the record to show that when a labourer has to go out of his village for labour work, they do not get any extra payment. The opponent has nowhere stated in his evidence that he used to pay to his labourers for their work less than Rs. 10/-. Even if we take reasonable assessment of the situation the deceased at the minimum would be entitled to wage between Rs. 5/- to Rs. 10/-. Therefore, if I take Rs. IIper day when the deceased had to go out of his own village, it would not be unreasonable and hence the deceased should be considered to be earning Rs. 210/- per month. And therefore, according to Schedule IV the appellants would be entitled to the amount of Rs. 180.00 on account of death of Chana Hira. The appellants, therefore, would be entitled to compensation of Rs. 18,000/-. However, the appellants have claimed Rs. 19,200/-, but in view of the evidence on record I come to the conclusion that the appellants are entitled to Rs. 18,000/- by way of compensation on account of death of Chana Hira.
11. The next question would be with regard to the interest and penalty. Section 4A(3) of the Workmen's Compensation Act provides that where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty. The amount falls due immedeately on the date of the accident - in the present case on 22-5-1977. The learned Commissioner decided the matter on 7-9-1978, by dismissing the application. However, till the date of dismissal of the application the employer did nothing either to deposit provisional payment or amount, within one month, which according to himself he was liable to pay. There was no justification for the employer for not depositing such amount.
12. Therefore, the simple rate of interest at 6% p.a. should be paid by the employer. Mr. P.V. Hathi learned Counsel for the respondent has contended before me that in the present case the employer had succeeded by order dt. 7-9-1978 and, therefore, from that day onwards he should not be made liable for the interest. The scheme of the section is very clear that the amount of compensation under Section 4 shall be paid as soon as it falls due i.e. immediately after the accident. However, if the employer does not accept the liability for compensation to the extent claimed, he is bound to make provisional payment based on the extent of liability which he accepts and such payment is required to be deposited with the Commissioner or made to the workman, as the case may be within one month without prejudice to the right of the workman, to make any further claim. In case of default, the employer is liable to pay interest and penalty also. Therefore, interest shall be payable to the appellants at the rate of 6% from the date of the application till realisation.
13. In the instant case the learned Counsel for the appellants has submitted that the penalty should be imposed on the employer to the extent of 50% of compensation because he has not only refused to make the payment or deposit the provisional amount but has contested the case tooth and nail to defeat the claim of the appellants. However, Mr. Hathi, learned Counsel for the employer, has contended that the employer was not in default as according to him he was not liable to pay any compensation and therefore, in the present case this Court should not find fault for delay with the employer as he had succeeded before the learned Commissioner. The question of interest and penalty goes together. The first part is with regard to the interest and the Commissioner has to form an opinion whether there is justification for the delay or not. In the present case, not only there is delay but the employer has tried its utmost to defeat the claim of the appellants for compensation. The employer has tried to avoid his liability to make the payment and the widow and minor children of the deceased have been dragged in to litigation upto the High Court for compensation for the death of Chana Hira. Considering the facts and circumstances of the case, I am of the view that the opponent-employer should pay penalty to the extent of 25% of the amount of compensation. The amount of compensation has been worked out to Rs. 18,000/ and therefore, the amount of penalty would come to Rs. 4,500/-.
14. In the result, the appellants are entitled to compensation of Rs. 18,000/- with interest at the rate of 6% p. a. from the date of the application till realisation alongwith costs throughout. The appellants are further entitled to an amount of Rs. 4,500/- by way of penalty. The opponent do pay the aforesaid amounts within a period of eight weeks from to-day. Appeal is accordingly allowed.
15. In the present case the appellant Nos. 2 to 5 are minors, I, therefore, direct that an amount of Rs. 25,000/- out of the aforesaid amount should be deposited in a nationalized bank, in a fixed deposit account, in the joint names of the appellants for a period till youngest minor appellant attains majority. The remaining amount, after depositing Rs. 25,000/- as aforesaid, shall be paid to the appellant No. I-Bai Jiviben Chana. The amount of interest accruing on the deposited amount shall be paid to appellant No. 1 Jiviben Chana, periodically, as and when it falls due.