1. This is an appeal at the instance of the Super-intending Engineer, Parambikulam Aliar Project, against the order of the Additional Commissioner for Workmen's Compensation, Coimbatore, dated 18th June, 1980, in W.C. 31 of 1980, awarding compensation in a sum of Rs. 18,000/- to the respondent herein for the death of her husband. The deceased husband of the respondent, one Arulswami, was employed as a Luskar in the Ponneri branch canal of Udumalai canal between kilometres 12 and 15 and it was his duty to regulate the flow of water in the branch canal by operating upon the sluices and shutters under the directions of the Junior Engineer in charge of Udumalai canal. On 30th September, 1978, Arulswami addressed a letter to the Junior Engineer drawing his attention to the cutting of the canal bank near the left branch canal of Udumalai canal near survey No. 203, in East Thanthoni village at the instance of one Arumugha Gounder and stating that as a result of that it was difficult for men to walk along the bank and also to use cycles. Arulswami had also requested that suitable action should be taken regarding this. Again, Arulswami had addressed another letter to the Junior Engineer informing him that the flow of water had been obstructed in the right branch canal and after removing the bricks in the bank, water had been made to overflow in Kannimar pond and therefrom the owners of survey No. 205 and 114 in Thanthoni village were irrigating their fields with water, with the result that the cultivators in the lower reaches of the canal had been affected besides resulting in damage to the canal bank. A personal inspection by the Junior Engineer had been requested for taking further action. While matters stood thus, on 13th October, 1978, Arulswami had met the Junior Engineer at 7.30 a.m. and informed him of what had happened and requested him to come in person and do the needful as some persons were obstructing him in discharge of his duties. Thereupon, the Junior Engineer directed Arulswami to do his duty and assured him that he would come there in person and pursuant to the oral orders of the Junior Engineer, Arulswami went about performing his duty in the matter of regulating the water in the canal by opening and closing the shutters and sluices, and finally, when he went to the sluice where there was some trouble referred to earlier he was done to death. Alleging that Arulswami met with his death in the course of his employment and also out of his employment and that he was earning a sum of Rs. 210/- per mensem at the time of his death the respondent herein filed W.C. No. 31 of 1980 before the Additional Commissioner for Workmen's Compensation, Coimbatore, praying for payment of compensation in a sum of Rs. 18,000/-.
2. This application was resisted by the appellant herein on the ground that though the deceased Arulswami was employed by the department as a Luskar and he had also put in more than 7 1/2 years of service on the date of his death on 13th October, 1978, Arulswami was found floating in the canal and on a complaint made to the police since some injuries were found on his head, it was reported that it was a case of accident death and that the claim for compensation in a sum of Rs. 18,000/- made by the respondent alone without disclosing the children, cannot be entertained.
3. Before the Additional Commissioner for Workmen's Compensation, the respondent alone was examined in chief, and she was not even cross-examined by the appellant. On a consideration of the materials made available, the Additional Commissioner for Workmen's Compensation, Coimbatore, found that Arulswami succumbed to death owing to an assault by some people who were inimically disposed towards him in connection with his employment in the release of water for the purpose of irrigation and that he died due to an accident which arose out of and in the course of his employment. Since the deceased was in the wage group of Rs. 200/- to Rs. 300/- the Additional Commissioner for Workmen's Compensation, Coimbatore, proceeded to award a sum of Rs. 18,000/- to the respondent in accordance with Schedule IV of the Workmen's Compensation Act. It is the correctness of this order that is challenged in this civil miscellaneous appeal.
4. The principal contention of the Additional Government Pleader on behalf of the appellant is that though it may that the said Arulswami met with his death in the course of his employment, it cannot be taken to have been established, that his death resulted out of his employment as he was done to death and, therefore, inasmuch as this requirement has not been substantiated the award of compensation to the respondent cannot be sustained. Reliance in this connection was placed upon the decision of the Supreme Court in M. Mackenzie v. I. M. Issak : (1970)ILLJ16SC . On the other hand, the learned counsel for the respondent submitted that the facts inferable in this case, which are as good as facts established on evidence, show that the deceased met with his death not only in the course of his employment, but as a result of his employment and in the discharge of his duties while regulating the flow of water in the canal and that but for the performance of the duties in regulating water in the canal, the deceased would not have met with his death, and therefore, this is a case where death had taken place not only in the course of the employment, but also out of the employment of the deceases as a Luskar and as such, the award of compensation is quite correct. In support of his submission, the learned counsel drew attention to the decision in Naima Bibi v. Lodhne Colliery Co. Ltd. : (1977)IILLJ69Cal , Union of India v. Mrs. Noor Jahan 1979 L.I.C. 652 and Varkeyachan v. Thomman : (1979)ILLJ373Ker .
5. Under S. 3(1) of the Workmen's Compensation Act, 1923, the liability of the employer to pay compensation arises if an injury is caused to the workman by accident arising out of and in the course of his employment. The respondent, in the course of her evidence, has stated that on the morning of 13th October, 1978 her husband reported to duty as usual stating that he would be back home for lunch, but that he did not come as promised and that she learnt that evening that he had died. Her further evidence is that she went to the hospital at Udumalpet where she was told that somebody had beaten him up and that she did not know who did that or why. That there were disputes between the deceased and others in the matter of regulation of water in the canal has also been spoken to by her and she has specifically stated that the disputes arose only out of the employment. There has been absolutely no cross-examination even on this evidence.
6. The materials made available in this case clearly establish beyond doubt that Arulswami reported to duty as usual on 13th October, 1978 and had also gone about discharging his duties of regulating the water in the branch canal of Udumalai canal. It was in the course of discharging his duties in the matter of regulation of water in the canal that Arulswami had met with his end and, therefore, it is manifest that the deceased died while in the course of his employment. The question is, whether having regard to the circumstances under which Arulswami died, his death can be said to arise out of his employment. The proper test to be applied for determining the question whether an accident arose out of employment or not has been laid down by the Supreme Court in M. Mackenzie v. I. M. Issak (Supra). The Supreme Court has pointed out that the expression 'in the course of the work which the workman is employed to do and which is incidental to it'. The expression 'arising out of employment' should be understood, according to the Supreme Court, to mean that 'during the course of the 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'. In other words, there must be a casual relationship between the accident and the employment and if the accident had occurred on account of a risk which is an incident of the employment, then the claim for compensation must succeed, unless the workman had by his own imprudent act exposed himself to an added peril. It was also pointed out by the Supreme Court that in the case of death caused by the accident, the burden of proof, no doubt, rests on the dependents of the deceased workman to prove that the accident arose out of employment as well as in the course of employment, but that it may be inferred when the facts proved justify the inference.
7. In this case, the deceased had to be in the place where he was done to death in the course of his employment for discharging his duties. By reason of his being in the particular place, he had to face the indignant agriculturists who had unauthorisedly diverted the water from the canal and about whom he had made a complaint to the Junior Engineer and by reason of that, the deceased had to face a peril and the accident resulting in his death was caused by reason of such peril which the deceased was obliged to face. In such a situation, there was a casual connection between the accident and the employment and the deceased did not face any peril which was something personal to him in the sense that any other person in the place of the deceased would also have to face the same peril at the hands of the indignant agriculturists who had unauthorisedly taken water from the canal. In other words the accident had taken place out of a peril which was very closely and intimately linked up with the performance of the duties of the deceased and thereby a casual connection is established between the employment and the accident. Indeed, in M. Mackenzie v. I. M. Issak (Supra) referred to earlier, the following test laid down by Lord Summer in Lancashire and Yorkshire Rly. Co. v. Highley (1917) A.C. 352, has been approved.
'There is, however, in my opinion, 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 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. To ask if the cause of this was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.'
Applying the aforesaid test, in this case, it is clear that the injury sustained by the deceased was connected with work and there was necessary nexus between the work and the injury resulting in his death. It has also to be remembered that but for the employment of the deceased he would not have been at the place where the accident happened and causal and proximate connection between the accident and the employment is also established. There is no evidence in this case to indicate that by any action on his part the deceased either added to the peril or otherwise enlarged it and under these circumstances, it has to be held on the uncontradicted testimony of the respondent that the deceased met with his death only as a result of an accident which arose out of and also in the course employment under the appellant and therefore, the appellant was liable to pay compensation in accordance with the provisions of the Workmen's Compensation Act. No point was raised touching upon the quantum of compensation and hence the award of Rs. 18,000 to the respondent has to be maintained.
8. Consequently, the appeal fails and is dismissed with costs. Counsel fee Rs. 250.