C.B. Bhargava, J.
1. This appeal by the employer is directed against the judgment of the Workmen Compensation Commissioner, Jodhpur dated 15th May, 1967 allowing Rupees 7000 compensation to the widow of deceased Gordhansingh.
2. The material facts which have given rise to this appeal may he shortly stated thus. The deceased was employed as a driver on a truck of the appellant which used to carry petrol tank. The deceased reported to the appellant that the tank was leaking upon which the appellant got the tank partly filled with water at night and ordered the deceased to check it on the next morning. On the next morning i.e., on 10th November, 1963, the deceased entered the tank to see from where it leaked and lighted a match stick as a result of which it caught fire and the deceased received burns due to which he succumbed subsequently.
3. The evidence produced on behalf of respondent No. 1 was that the match box was supplied to the deceased by the appellant. But this fact was denied by the appellant in his deposition and in the opinion of the learned Commissioner it was doubtful that the appellant had given the match box to the deceased though no reasons are given for the aforesaid conclusion.
4. The learned Commissioner on the evidence found that the deceased was a workman, that the accident arose in the course of and out of his employment, that the deceased was getting Rs. 150 p.m. as wages, that the widow was not debarred from claiming compensation on account of her remarriage and that the compensation could not be awarded against the insurance company in these proceedings.
5. Learned counsel for the appellant contends:
1. that in the present case the accident did not arise out of and in the course of the deceased's employment and it occurred due to the 'added peril' that is the lighting of match stick within the petrol tank by him.
2. that the Commissioner ought to have held the insurance company i.e., respondent No. 2 also liable for compensation,
3. that after remarriage respondent No. 1 was not entitled to claim compensation because she no longer remained a dependent.
6. I will take up these contentions one by one. As for the first contention it is urged by the learned counsel that the deceased was employed as a driver at the appellant's truck and it was no part of his duty to clean the tank or to detect the point of leakage. Even if it be held that the accident arose in the course of employment it cannot be held that it arose out of it because the deceased by lighting the match stick within the tank committed an act which no prudent person would have done in the circumstances and the said act was not necessary for the purpose of employment. Thus it was a case where the deceased by his own conduct brought about the accident. Reliance is placed on Gouri Kinkar Bhakat v. Radha Kishen Cotton Mills, AIR 1933 Cal 220; Devidayal Ralyaram v. Secy. of State, AIR 1937 Sind 288; Bhurangya Coal Co., Ltd. v. Sahebjan Mian, AIR 1956 Pat 299; Barnes v. Nunnery Colliery Co. Ltd., 1912 AC 44 and Stephen v. Copper, 1929 AC 570.
7. In order to appreciate the argument it would be useful to reproduce the relevant parts of Section 3 of the Workmen's Compensation Act (hereinafter called the Act.)
'3 (1). 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 employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury not resulting in death, caused by an accident which is directly attributable to
(i) the workman having been at the time thereof under the influence of drink or drugs or
(ii) the wilful disobedience of the workman to an order expressly given or to rule expressly framed, for the purpose of securing the safety of workman, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.'
8. It would appear from the above provision that if personal injury is caused to a workman by accident arising out of and in the course of his employment, the employer shall be liable to pay compensation except where the injury does not result in the total or partial disablement of the workman for a period exceeding three days and except in the case where injury results in death, the accident is directly attributable to the causes mentioned in Sub-clauses (i), (ii) and (iii) of proviso (b). In order to claim compensation the employee has to show not only that at the time of the accident he was in fact employed on duties of his employment, but further that the immediate act which led to the accident was within the sphere of his duties and not foreign to them. In case of death of an employee due to accident if it has arisen out of and in the course of his employment it is no defence to plead that there was wilful disobedience of any order or rule expressly given or framed for the purpose of securing the safety of the workman. Clause (b) of the proviso to Sub-section 1(1) of Section 3 is limited to those cases where injury has not resulted in death. This is quite evident from the language of the section itself and if any authority is needed I may refer to Thomas v. Ocean Coal Co. Ltd. 1932 All ER 458 where on the following facts that the workman was a hitcher in a coal mine, his duties being, inter alia, to help in getting full trams into and empty trams out of the cages. His proper place of work was on the loading, or full tram side of the pit bottom, but he was expected to help, in cases of emergency, in dealing with empty trams on the other side of the pit. On April 17, 1931, he crossed the pit bottom to see to the working of empty trams and then ran back across the shaft bottom towards his proper working side to be ready to receive a cage when it landed. So to cross the shaft bottom, was expressly prohibited by a regulation made under the Coal Mines Act, 1911. Before the workman could get fully across the shaft bottom the descending cage struck and killed him. On a claim for compensation by his widow, it was held on the construction of English Workmen's Compensation Act of 1925 that:
'In considering whether the case came within Section 1(2) of the Workmen's Compensation Act, 1925, it must first be ascertained, disregarding the prohibition contained in the regulation whether the workman's death was due to an accident arising out of and in the course of his employment; if it did, the effect of the prohibition in removing the accident from that category could be annulled if the later conditions in the subsection as to the act being done by the workman for the purposes of and in connection with his employer's trade or business' were fulfilled; in the present case the accident certainly arose out of the workman's employment and it also arose in the course of that employment since he had been engaged to work on both sides of the pit and desired to expedite that work; his contravention of the regulation did not put him outside the sphere of the employment, and so his act was done for the purposes of and in connection with the employers' business; and, therefore, his widow was entitled to compensation.'
9. The view expressed in this case was approved later on in Noble v. Southern Railway Co., 1940-2 All ER 383 and on the following facts that the deceased, a fireman employed by the respondents, was ordered to proceed from an engine-shed to a railway station. The permitted routes for this journey did not involve walking along the railway lines, and several warnings had been issued by the respondents to their staff forbidding them to walk along the lines unless they were using a permitted route. The deceased proceeded to walk along the lines, and was killed by a train; it was held that; 'As the evidence established that the deceased was acting for the purposes of, and in connection with, his employers' trade or business, and was acting within the sphere of his employment, the accident must be deemed to have arisen out of and in the course of his employment, although the act was in contravention of the employers' rule. The widow, was, therefore entitled to recover compensation.'
10. However, as it is not the case of the appellant that the act of the deceased was in wilful disobedience of any express order or rule it is not necessary to pursue the matter further. But this much is clear that where injury has resulted in death the question about disobedience of any rule or order is not material so long as it can be held that the accident arose out of and in the course of the employment.
11. Here the contention of the learned counsel for the appellant is that it was the rash conduct of the workman in lighting the match stick within the empty petrol tank which caused the accident and, therefore, the employer cannot be held liable for compensation. He says that the workman by his own conduct 'added peril' and lost his life due to the accident. But if wilful disobedience of any express order or rule cannot be a good defence in case where injury has resulted in death how can mere negligence or rashness on the part of the workman arising out of and in the course of his employment be a good defence? In my opinion negligence or rash conduct of the workman in cases where the accident arises out of and in the course of the employment, is immaterial, The question in such cases is to see whether what the workman did was really an improper way of doing what he was employed to do or was something outside the sphere of his employment. If the case falls under the first category, the employer is liable, while in cases falling under the second category, there will be no such liability of the employer. The case of Gouri Kinkar Bhakat, AIR 1933 Cal 220 is a case falling within the second category. There the learned Chief Justice came to the conclusion that the duties of the workman who was a piecer in the spinning department of a cotton mill did not include anything which required his getting down underneath the table and interfering with the tin tollers while they were in motion. The workman's story as to his dhoti being caught while he was standing by the machine was found impossible. In Devidayal Ralyaram's case, AIR 1937 Sind 288 where a fitter who wanted some scrap to make nuts and studs went under the machine to take ii from the scrap-heap under the machine which when set in motion caused a permanent injury to his hand which rendered it almost useless. It was no part of the fitter's duty to go into the machine shop and search under the machine for pieces of scrap, and in fact fitters were prohibited from passing through the machine shop to the store to get scrap for the purpose of their work. It was held that:
'As the injury suffered arose out of an added peril to which the fitter had voluntarily and unnecessarily exposed himself, it did not arise out of and in the course of his employment and he was not entitled to compensation'.
12. In Bhurangya Coal Co's case, AIR 1956 Pat 299 it was held 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.' However, on the facts of that case the defence of added peril was found to have no foundation. It was established in that case that the deceased workman had at that time gone from incline 24 to incline 25 to do something which was a part of his usual job and through a route not forbidden; and while he was on his way back from there he suddenly saw the rake of tubs coming up towards him. At that he tried to avoid the danger but the space there being narrow, the attempt failed.
In Barnes's case, 1912 AC 44 on the following facts that a boy employed at a colliery, noticing that an endless rope having a number of empty tubs attached to it was about to start from a level where his work was, jumped into the front tub with three other boys in order to ride to his work instead of walking as he ought to have done, and in the course of the journey his head came in contact with the roof of the mine and he was killed. It was a common practice for the boys to ride to their work in the tubs, but it was expressly forbidden and the prohibition was enforced as far as possible. Upon a claim by the father for compensation under the Workmen's Compensation Act, 1906, the County Court Judge found that the accident arose out of the deceased's employment, it was held that:
'There was no evidence to justify this finding, and that the death was caused by an added peril to which the deceased by his own conduct exposed himself, and not by any peril involved by his contract of service.'
In the course of the judgment Lord Atkinson observed that:
'In these cases under the Workmen's Compensation Act a distinction must I think, always be drawn between the doing of a thing recklessly or negligently which the workman is employed to do, and the doing of a thing altogether outside and unconnected with his employment peril which arises from the negligent or reckless manner in which an employee does the work he is employed to do may well be held in most cases rightly to be a risk incidental to his employment. Not so in the other case.'
In the same judgment Lord Mersey observed that:
'He was not doing a permitted act carelessly, but he was doing an act which he was prohibited from doing at all.'
The above observations, if I may say so with respect lay down the crucial test,'
13. In 1929 AC 570 on the following facts that a farm servant was employed to drive a reaping machine drawn by two horses placed on either side of a centre pole and yoked to the machine by means of chains. While he was driving the machine one of the chains became detached from the backband of the near horse. The driver thereupon stopped the machine, but without putting the cutting blade out of gear, and attempted by walking along the pole between the horses to refix the chain. The pressure of his weight upon the pole made the horses start forward, and he fell from the pole on to the cutting blade and was seriously and permanently injured, it was held that:
'There was evidence to support the finding of the arbitrator that the risk taken by the driver was not incidental to his employment, but was an added peril due to his own voluntary conduct, and accordingly, that the accident did not arise out of the employment.'
In that case Lord Shaw of Dunfermline after making the following observations that
'Of added peril and the cluster of cases around that phrase I would beg to be allowed to say that there are no inconsiderable dangers of an erroneous development of the law by making added peril a sole test and therefrom a settled and conclusive category of cases which are excluded from the 'remedial' operation of the Workmen's Compensation Act.
Granted an extra hazard, it is not enough to dub it an added peril and to follow me cases; the true inquiry may be only beginning. On the one hand a fundamental question is, was the course taken by the workman prompted by his own indolence or purely for his own convenience and not in the interests of the work, say, by effectiveness or dispatch? If so then the extra hazard is not only an added peril but a needless peril and an arbitrator is free to find that the accident did not arise out of the employment.
On the other hand, the conditions not merely of skilled labour, but of much simpler and more ordinary labour, over and over again present emergencies and unexpected difficulties, great and small, and Courts and arbitrators should be slow to reckon out of the employment unusual acts done or simple devices adopted to get the work forward and to meet emergent difficulties, the merit of a good workman is to show a dexterity both of hand and mind to Overcome these and he may under-estimate the hazard of his efforts in the attempt to be both a time saver and a labour saver. But in my opinion the statute does not on a sound interpretation mean that an accident occurring in the course of such acts and with the hazard referred to did not arise out of the employment. The range of routine is not necessarily the measure of employment' reluctantly and with doubt agreed with the judgment. In the same judgment Lord Warrington of Clyffe quoted with approval the following observations of Lord Sumber in Lancashire and Yorkshire Rly. Co. v. Highley, 1917 AC 352 that:
'There is .... one test which is always at any rate applicable, because it arises upon the very words of the statute and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard to suffer, or to do that which caused his injury? If yes, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment.'
14. In this connection it will be useful to notice a few more decisions on the subject. In Harris v. Associated Portland Cement ., 1939 AC 71 on the following facts that
'The appellant's work involved his standing in water, and before doing so, he, like the other workmen similarly employed, tied sacking round the bottom of his trousers to keep them dry. It was part of his duty to see that the sacks after being so used were dried so that they could be available on the following day. It was the recognized practice to dry the sacks at or near an electric fan in a turbine in the motor room. While attempting on one occasion to place the sacking near the fan, which was revolving, the appellant's hand was caught by the fan and severed. On a claim for compensation in respect of this under the Workmen's Compensation Act the County Court Judge found that while the appellant, in seeking to dry the sacking was doing something in the course of his employment, he by putting the sacking in such close proximity to the fan incurred & peril which no workman without extreme rashness would have undertaken and there being nothing in the contract of employment which obliged him to put his hand within the turbine the act was outside his employment and therefore that he was not entitled to compensation, it was held:
'that once it was found that the act which the appellant was seeking to do was within the scope of his employment, the question of negligence, great or small, in doing the act was irrelevant.'
In that case Lord Atkin observed with reference to Stephen's case, 1929 AC 570
'On this finding of fact, which had to be accepted as conclusive, the applicant necessarily failed. The case did not raise the question of the degree of negligence in doing an employment act turning the act into something outside the employment, and I find nothing in the speeches delivered in this House to support that view. The fact is that the workman's negligence in doing his job is one of the most fruitful causes of injury; and, if it would in any degree preclude compensation, the benefits of the Act would be seriously impaired. In truth the negligence of the workman is as much a risk of his employment as the negligence of his fellow workmen. In my opinion if a workman is doing an act which is within the scope of his employment in a way which is negligent in any degree and is injured by a risk incurred only by that way of doing it he is entitled to compensation. One must of course bear in mind the work which he is employed to do, and the place in which he is employed to do it. Some confusion has been introduced into the cases by treating accidents which arose in out-of-employment places as though they were cases of negligence. Still more by the unfortunate misapplication of the expression, valuable enough in its right context, of 'added risk'. In a sense every man who does his appointed work negligently adds to the risks or his employment done carefully the risk of that employment done carelessly. In fact the 'added risk' might I think, more correctly be called a 'different risk', i.e., the risk in doing something which is not within his employment at all.'
In the same case Lord Thankerton observed that:
'The Courts below appear to me, with all respect, to proceed on a misunderstanding of Lord Hailsham's dictum in Stephen v. Copper, 1929 AC 570 and a misapplication of the so-called doctrine of added peril'. I cannot agree that the question is one of 'fact and degree' of recklessness; in my opinion there must be a separable act as explained by my noble and learned friend. In my opinion, there was no evidence in the present case on which the arbitrator was entitled to find that there was such a separable act, and the appeal should succeed.
In the same case Lord Wright quoted with approval the words of Lord Macnaghten in Reed v. Great Western Rly, Co., 1909 AC 31 that:
'The problem may be compendiously stated in the words of Lord Macnaghten in Reed v. Great Western Rly. Co., 1909 AC 31 as being whether the man at the time when the accident happened was about his own business, not about the business of his employers.'
This case clearly enunciates the meaning of the phrase 'added peril' and its application to cases arising under the Workmen's Compensation Act and lays down that if the act which the workman was doing was within the scope of his employment, the question of negligence greater or small in doing that act is irrelevant. The same view finds expression in Blanning v. C. H. Bailey Ltd., 1942-2 All ER 562 where a workman, employed by the appellants, met with his death through receiving burns caused by his clothing catching fire as the result of his dropping a bottle of petrol near to a stove and the petrol becoming ignited. The petrol was apparently intended to be used by the workman for the purpose of cleaning his hands which became greasy as the result of his work. There was no purpose directly connected with the employment which necessitated the use of petrol. It was contended for the appellants that there was no evidence that the accident arose out of the employment; it was held that
'In the circumstances it was reasonable for the workman to have petrol with him for the purpose of cleaning grease from his hands, its use not being expressly or impliedly prohibited, and, therefore, the accident arose out of his employment'.
15. This case, therefore, establishes that no matter how negligent or rash the workman's action, it arises out of the employment if it is within the scope of his duty as an employee.
16. 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 (vide Lord Shaw of Dunfermline in Mrs. Margaret Thorn or Simpson y. Sinclair, 1917 AC 127. 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.
17. The present case has therefore, to be judged in the light of the above principles. It is clear that the deceased was employed as a driver on the appellant's truck used for the purpose of carrying petrol in a tank. On the previous day he had reported to the appellant that the tank was leaking and so water was put in it for detecting the place from where it leaked. The deceased was asked by the appellant to enter the tank to see from where it leaked. Accordingly the deceased entered the tank which had no petrol in it, but had been partly filled with water and for the purpose of detecting the place from where it leaked, he lighted a match stick. The deceased was at the place of his work and did something in furtherance of the employer's work when the accident occurred. It may be that instead of lighting a match stick he should have used a torch to detect the place of leakage, but for the reason that the tank was empty and had been partly filled with water on the previous night, he might have little foreseen the risk involved. In these circumstances the utmost that can be said is that the deceased acted negligently or rashly, but it cannot be said that the act done was outside the sphere of his employment. The distinction has to be kept in view in cases where the injury by accident is due to a risk assumed independently of the employment and outside it, as distinguished from by an injury which is the result of a mere act of negligence. For the purpose of the appellant's business he had entered the tank to see from where it leaked and for that end also he lighted a match stick. I have, therefore, no doubt that the accident arose out of the deceased's employment and the act of lighting the match stick even if it be held as a rash or negligent act, will not debar his widow from claiming compensation.
18. As for the second contention the Act as appears from its preamble was enacted to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. The term 'employer' has been defined in the Act and the insurance company does not come within the ambit of that definition. Therefore the Commissioner appointed under the Act will have no jurisdiction to award compensation to a workman against the insurance company unless the case falls within Section 14 of the Act which deals with the liability of the insurers when the employer becomes insolvent, where he has entered into a contract with any insurer in respect of any liability under this Act, Obviously Section 14 has no application in this case. Learned Counsel however, relies upon the provisions of Section 96 (1) and (2) of the Motor Vehicles Act. Under Section 96 (1) an insurer is deemed to be a judgment-debtor when under certain circumstances a decree is passed against the insured. But it does not contemplate passing of a decree against the insurer himself. Section 96 (2) provides that the insurer shall not be liable under Sub-section (1) unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings or in respect of any judgment so long as execution is stayted thereon pending an appeal. These provisions, in my opinion, do not help the appellant at all in his submission that the Commissioner under the Act is authorised to pass a decree against the insurance company even though it was made a party in the proceedings at the instance of the respondent No. 1. The contention has, therefore, no force and is rejected.
19. The last contention that the widow became debarred from claiming compensation on account of her remarriage has also no force because in the Act there is no such provision that after remarriage widow of the deceased would not be regarded as a dependent. Under Section 21 of the Hindu Adoptions and Maintenance Act, 1956, a widow remains a dependant, within the meaning of that section so long as she is not remarried. But the definition of the 'dependent' under the Act is not so restricted and the fact that she has remarried will not disentitle her to claim compensation under the Act.
20. Thus there is no force in this appeal and is hereby dismissed with costs.