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Guruswami Mudaliar (K.) Vs. Executive Engineer, Mettur Canals Division - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1956)IILLJ44Mad
AppellantGuruswami Mudaliar (K.)
RespondentExecutive Engineer, Mettur Canals Division
Cases ReferredSaint Joseph v. Mariashos
Excerpt:
- - but unfortunately a strong sudden wind blew. 500. the defeated contractor guruswami mudaliar appeals. (v) such accident must have occurred, in or about the premises (a) on which the principal has undertaken (or usually undertakes) to do the work, or (b) which are otherwise under his control or management [see sub-sections (1) and (4)]. where the said conditions concur, the principal (as well the contractor in the alternative) becomes liable for the payment of compensation to the injured workman [see sub-sections (1) and (3)]. but where the principal has been made thus to pay compensation, he shall be entitled to recover the same from the contractor or sub-contractor from whom the workman could have recovered compensation under section 3, i. gunpa air1933bom338 (under the amendment.....ramaswami, j.1. this is an appeal preferred against the order made by the additional commissioner for workmen's compensation, madras, in w.c. case no. 749 of 1952.2. the facts are : public works department (general), madras, excavated a channel from mettur reservoir to irrigate lands in coimbatore and salem districts. one of the contractors engaged for excavating the channel was the appellant guruswami mudaliar. he had been given a contract for rs. 5,000. on the canal which was being excavated, a palmyra tree was standing. earth had been removed from the bottom on the eastern side to allow the tree to fall in the eastern direction. but unfortunately a strong sudden wind blew. the tree fell southwards. one chinna pappal who was working as a cooly in that excavation work under this contract.....
Judgment:

Ramaswami, J.

1. This is an appeal preferred against the order made by the Additional Commissioner for Workmen's Compensation, Madras, in W.C. Case No. 749 of 1952.

2. The facts are : Public Works Department (General), Madras, excavated a channel from Mettur Reservoir to irrigate lands in Coimbatore and Salem districts. One of the contractors engaged for excavating the channel was the appellant Guruswami Mudaliar. He had been given a contract for Rs. 5,000. On the canal which was being excavated, a palmyra tree was standing. Earth had been removed from the bottom on the eastern side to allow the tree to fall in the eastern direction. But unfortunately a strong sudden wind blew. The tree fell southwards. One Chinna Pappal who was working as a cooly in that excavation work under this contract got crushed by the fall of the tree and died. This took place on 11 June 1951. Her husband G. Ramaswami filed a claim for compensation on behalf of himself, his minor son, and his two married minor daughters born by this Chinna Pappal. The Chief Engineer, Public Works Department, admitted liability to pay compensation which was fixed by the Additional Commissioner for Workmen's Compensation at Rs. 500 on 17 November 1952. The Executive Engineer of the Mettur division on behalf of the Chief Engineer deposited the compensation on 13 December 1952 and filed this application for indemnification against the contractor Guruswami Mudaliar. This Guruswami Mudaliar has remained ex parte at one stage and got the ex parte order set aside and the application was disposed of on merits. He was directed to indemnify the Executive Engineer in the sum of Rs. 500. The defeated contractor Guruswami Mudaliar appeals.

3. Two points for determination before me are

(a) that the procedure prescribed for hearing of the application was not followed thereby vitiating the proceedings; and

(b) that the appellant is not liable to indemnify the Chief Engineer, Public Works Department, under Section 12 of the Workmen's Compensation Act.

4. On both these points I have come to the conclusion that these contentions are devoid of substance and here are my reasons.

5. Point (a).--The procedure for the hearing of these applications is prescribed by Sections 23 and 25 of the Workmen's Compensation Act, viz., that the Commissioner shall have all the powers of a civil court under the Code of Civil Procedure, 1908, for the purpose of taking evidence on oath and enforcing the attendance of witnesses and compelling the production of documents and material objects and the Central Rules 23 to 43 prescribing the procedure for the disposal of cases under this Act published by the Government of India, Department of Industries and Labour, notification No. L. 1182, dated 26 June 1924 (as subsequently amended up to 30 June 1953). The Additional Commissioner in this case has followed the procedure thereunder and consequently the proceedings are not in any way vitiated by any irregularity or illegality. Therefore, this point fails.

6. Point (b) --Section 12 of the Workmen's Compensation Act applies only where the following conditions concur --

(i) A person (referred to in this section as principal) must have contracted with another person (referred to in this section as contractor) for the execution by the latter (or under him) of the whole or any part of any work.

(ii) Such contract must have been made by such principal in the course of (or for the purpose of) his trade or business.

(iii) Such work must ordinarily form part of the principal's trade or business.

(iv) A workman employed by such contractor must have been injured by an accident arising out of and in the course of his employment so that if he had been directly employed by the principal, the principal would have been liable to pay under Section 3 of the said Act.

(v) Such accident must have occurred, in or about the premises (a) on which the principal has undertaken (or usually undertakes) to do the work, or (b) which are otherwise under his control or management [see Sub-sections (1) and (4)].

Where the said conditions concur, the principal (as well the contractor in the alternative) becomes liable for the payment of compensation to the injured workman [see Sub-sections (1) and (3)]. But where the principal has been made thus to pay compensation, he shall be entitled to recover the same from the contractor or sub-contractor from whom the workman could have recovered compensation under Section 3, i.e. , independently of the provisions of this section [see Sub-section (2)].

7. The statement of objects and reasons, published in the Gazette of India, Part V, dated 16 September 1922, pp. 314-316, set out the principle of this Section 12 as follows; Where an employer does his work through contractors-special provision is necessary. In soma cases the employer can reasonably be held responsible for the conditions of employment; in other cases he cannot. The distinction made here is between contractors who are employed in the course of, or for the purpose of, the original employer's trade or business and those who are not. Only in the latter case will the contractor be liable to pay the compensation; in all other cases the original employer will be liable. Thus, for example, if a mine-owner engages his labour by means of contractors who supervise these men while at work, the mine-owner will be responsible. But if the owner of a cotton mill employs an engineering firm to erect an extension to his mill, the engineering firm will be liable to pay compensation to the men they employed. Two exceptions are made; if a contractor does his work elsewhere than in or about the original employer's premises the latter has no real control over the safety of the workman and he is therefore relieved from responsibility.

8. The Select Committee has explained the scope of this section in their report published in the Fort St. George Gazette, dated 13 February 1923, pp. 30-32, and Gazette of India, 1923, Part V,pp. 37-41 as follows:

Under this section as originally drafted, the liability to pay compensation was thrown primarily upon the employer. Sub-clause (2) which gave him a statutory right of indemnity against a contractor applied only to contracts made before the commencement of the Act. The effect of this was that, in the case of a contract made after the passing of the Act, the employer would not be entitled to be indemnified by the contractor unless he had inserted in the contracts a special stipulation to this effect. In most cases written contracts are not entered into and the employer would have little or no protection against collusion between the contractor and the workman. In other cases, the contractors are themselves men of substance and it would be more convenient for all the parties concerned if the workmen were able to recover compensation from the contractor in the first instance. We have accordingly modified this clause to bring it into line with the principles followed in Section 5 of the English Act. The workman is thus enabled to proceed against the contractor or against the employer, and the contractor is liable to indemnify the employer in all cases. We have, at the same time, made the application of the section somewhat clearer by substituting the words 'which is ordinarily part of the trade or business of the principal' for the words ' which has been or is ordinarily undertaken by the principal in the course of or for the purpose of his trade or business.' We have, further, eliminated the provision which in the Bill as introduced exempted the Government and local authorities from the liability imposed by this clause. These authorities are liable just in the same manner as private individuals.

9. Though the original provisions were found effective in respect of contractors, it was considered that it would be an improvement if Sub-section (2) of Section 12 were amended so as to enable the principal to recover compensation from any person from whom the workman could have recovered compensation. The Amending Act XV of 1933 was based on the Report of the Royal Commission on Labour.

10. Referring to the amendment introduced by Act XV of 1933 the framers of the Act said:

Sub-section (2) of Section 12 of the Act provides that where a principal is liable to pay compensation under the section he is entitled to be indemnified by the contractor. There is in the section no provision relating to sub-contracts which are not uncommon in Indian industry. A recent decision of the Calcutta High Court has made it apparent that no indemnification can be obtained under the Act from a subcontractor in respect of compensation awarded against the principal for injuries sustained by a sub-contractor's workman. The amendment seeks to remove this defect.

11. To sum up, the object of this section is that, a person who, in the course of, or for the purpose of, his trade or business contracts with any person for the execution, by or under the contractor, of work undertaken by the principal, is liable to pay compensation to any workman employed in the execution of the work where he would have been liable to pay such compensation, if the workman had been immediately employed by him. The general notion is that if it is an ordinary part of the business of a person to execute certain work, then ordinarily he would do that work by his own servants; he is not to escape liability for any accident that takes place merely by interposing a con-tractor, the contractor undertaking to do what the principal ordinarily would do for himself. But normally the workman can only recover compensation from his employer; but this section as explained gives the workman a right to proceed against the person who has entered into a contract with the workman's immediate employer by which the latter was to do certain work. If the workman has a right to recover from the person who has employed the workman's employer to do certain work, then Sub-section (2) comes into play and the person who is known as the principal who has employed the contractor can recover from the contractor by way of indemnity. But before the question of indemnity arises, five conditions must concur as set out in Para. 6 above [S.M. Ghose v. National Sheet Metal Works : AIR1950Cal548 ].

12. First of all, we have got to see whether the Chief Engineer, Public Works Department (General), is the principal in this case. Where a person who has undertaken by contract to do work sublets the work or part of it to another who provides his own workmen, such first-named 'person is a 'principal' within the meaning of Section 12. So also any person, who is doing for himself work of the same description as that which he holds himself out as generally undertaking to do for others, sublets all or part of that work [Skates v. Jones & Co. 1910 2 K.B 903; Cooper and Granes Co. v. Wright 1902 A.C. 302]. But a person is not a principal in the above sense merely because, for the purpose of his trade or business, he contracts for certain necessary work, not usually performed or undertaken by himself, and a fortiori if the contract is for private purpose. [Halsbury, Vol. 34, Para. 1245, Hailsham edu.]. In such a case the contract would not be in the course of, or for the purpose of, the principal's trade or business. Thus, where a surveyor employs a contractor to repair his house under his supervision, this section will not apply [Brine v. May Ellis Frace Co. (1912) 6 B.W.C.C. 134 ]

To constitute a man a principal under this section, the existence of both a head contract and sub-contract is not necessary; the section extends to the case of a man who for the purpose of his trade or business undertakes work on his own account and employs a contractor to do the whole or part of the work, provided that the work is such as the person employing the contractor usually undertakes for another in the ordinary course of his trade or business, hut not otherwise [Skates v. Jones & Co. (1910) 2. K.B. 903; Machumul Bilsi v. Jardan Menzies & Co : AIR1928Cal399 ; Dhun and Buy v. Gunpa : AIR1933Bom338 (under the Amendment Act)]. This is no longer good law [Visveswar v. Bhagendra : AIR1935Cal683 . The Chief Engineer, in this case, falls within the ambit of this definition.

13. Then, was Ouruswami a contractor within the meaning of Section 12? A contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respect to the detail of the work [Iron Co. v. Dodson 7 Lea 373].

This definition is well brought out in the following two cases: A tindal was employed by the dubashes to supervise the workmen, one of whom was the deceased workman. The workman received injuries during the course of and arising out of the employment, which resulted in his death. Held that the tindal was not a contractor [Cowasji & Sons v. Aloo Jootha A.I.R. 1930 Sind. 49]. Where the employers who are contractors engage workmen through a sub-contractor under them, for the execution of work which was ordinarily part of their own trade or busi-ness, the employers and not the sub-contractor is liable [A.A. Thevar Bros. v. Muthu Mariammal A.I.R. 1933 Rang. 208]. In the present case, this appellant Guruswami Mudaliar who has taken a contract for Rs. 5,000 for excavation of the right bank of the canal is certainly a contractor and not a mere kangani as he wants to make out.

14. Thirdly, it is essential that the contracts must be for the purpose of the principal's trade or business [Peerce v. London and South-west Railway (1906) 29 Bom. 100]. Though the work may be within the scope of the general purposes of the business of the principal, he is not liable if it is not part of the trade or business which he undertakes [Wantes v. Tranco-British Exhibition (1909) 25 T.L.R. 441 C.A. 2 : B.W.C.C. 199]. The fact that the work contracted for is unusual and not often required does not exclude the operation of the Act if such work can he fairly said to be work of the description which the alleged principal undertakes [Dittinar v. She (1909)1 K.B. 389 C.A. : 2 B. W.C.C. 178]. These words apply to the business of the particular employer and not to the employer ejusdem generis [Bush v. Harves (1902) 1 KB. 216 : 71 L.J.L.B. 68 : 85 LT. 507], Such contract must also ordinarily form part of the principal's trade or business. The idea underlying this is that if it is ordinarily part of the business of a person to execute certain work, then he will ordinarily do that work by his own servants; he is not to escape liability for any accident that takes place merely by interposing a contractor--the contractor undertaking to do what ordinarily the principal would do for himself [Rabia v. G.I.P. Railway A.I.R. 1929 Bom. 179] (English oases discussed); Karment Industrial Bank v. Ranjan : AIR1933Cal63 J Periakkal v. S.I.R A.I.R. 1935 Mad. 721. The word 'ordinarily' in this sub-section applies just as much to a Government department as it does to any other principal [Rabia v. G.I.P. Railway A.I.B. 1929 Bom 179]. The question which arises under the sub-section is normally a pure question of fact. The question relates to the business of the class of that carried on by the principal, so that the question can only be answered by reference to evidence as to the nature of the principal's business [Kokilabai v. Keshadlal: A.I.R. 1942 Bom. 18]. There can be no dispute in this case that this work which the contractor had undertaken was in the course of, or for the purpose of the principal's trade or business and ordinarily formed part of the principal's trade or business.

15. Fourthly, this section shows that the principal who employs a contractor shall be liable to pay compensation to the workman whom he did not immediately employ but why were employed by the contractor. But before the principal is made liable, it must be established that the contractor was entitled to expect such workmen to do his work at his orders and that he was entitled to dismiss such workmen. It must be shown that there was a contract of service between the workmen and the contractor. Where there is only an agreement by which certain selected persons could come when they chose and do work on their own account which would get for them remuneration from the contractor, the principal is not liable to compensate such workmen [Leeshro v. Consolidated Tinnines A.I.R. 1939 Rang. 428]. In this case this Chinna Pappal was regularly employed by the contractor in the excavation of the right bank canal and the contention that she was a casual labourer which was advanced by this contractor was rightly repelled by the Additional Commissioner because two conditions have to be satisfied before a person can be excluded from the definition of workman in Section 2(1)(n) of the Act, viz., that the workman must be engaged on casual work and he must also be employed otherwise than for the purpose of his employer's trade or business. In this case even assuming that this Chinna Pappal worked only for eleven days for the contractor, she was employed for the purpose of her employer's business. It is well settled that both these qualifications must be present together for excluding a workman from the benefits of the Act. If a man is employed for the purpose of a trade or business, the employer is liable even if the employment is of a casual nature [Peraikkal v. South Indian Railway A.I.R. 1935 Mad. 72; Bachia v. Shantc A.I.R. 1940 All. 473 ; Arumughanv. Nagammal: A.I.R. 1949 Mad. 462; Abdul Hussain v. S.J.S. 1 A.I.R. 1938 Rang. 244 ; Master v. Ramdhar A.I.R. 1936 Nag. 493-165 Ind.Cas. 760; Thevar v. Karammal A.I.R. 1933 Rang. 208; Khulna Electric Supply Corporation v. Bahadur Sardar 42 C.W.N. 123 : 68 Cri.L. J. 467; Nanda Kumarv. Pramakher Nath; 42 C.W. N. 123; Popatlal v. Bailakhu : A.I.R. 1952 Rang. 74 ; Vinayaka Mudaliar v. Pothiamma : AIR1953Mad432 . Therefore, Chinna Pappal was a 'workman' employed by Guruswami within the meaning of Sub-section (1) of Section 12.

17. Coupled with the deceased workman being of the description set out in the third condition the accident which injures the workman and gives rise to compensation must arise out of and in the course of his employment.

18. The terms 'injury' and 'personal injury' as used in the Workmen's Compensation Act, are ordinarily construed as meaning any lesion or change in the structure of the body, causing harm thereto and a lessened facility of its natural and normal use. In some of the Acts, the term is expressly defined as meaning damage or harm to the physical structure of the body. According to the prevailing view, it is not essential that the disorder be of such a character as to present external or visible signs of its existence [American Jurisprudence, published by the Lawyers' Co-operative Publishing Company, Rochester, New York, Vol. 58; Workmen's Compensation in Section 194, p. 704 (Mode of Citation, 58 Am. Jur. Workmen's Compensation, Section 194].

19. The word 'accident' as used in the phrase 'injury arising by accident,' and similar expressions, in compensation statutes, are to be interpreted in the popular and ordinary sense, and as having a wide signification. According to some authorities, it is to be construed liberally in favour of the workman. It is generally construed as meaning an occurrence which is neither expected, designed, nor intentionally caused by the workman, and so, as to injuries unintentionally resulting from the acts of latter, is employed in contradistinction to the expression 'wilful misconduct' which is found ordinarily in the same section or paragraph of the statute. It has been stated that an injury is unexpected, so as to bring it within the category of 'accident,' in this connexion, if the workman did not intend or expect that it would result on the particular occasion from what he was doing. The mere apprehension that an injury such as did occur was likely to occur at some indefinite time in the future does not deprive the actual occurrence of its accidental character. While the concept of accidental is ordinarily understood as embodying a certain degree or element of suddenness in the occurrence of the event, and is frequently so defined, it is not always required that the occurrence be instantaneous. The term 'fortuitous event' as descriptive of the cause of injury is more comprehensive than the word ' accident ' [58 Am. Jur. Section 196, p.705: English decisions: Clover Dayton & Co. v. Hughes 1910 A.C. 242; Train School v. Kelly 1914 A.C. 667; Fent on v. Thorley Co. 1903 A.C. 443; Warner Venuchman 1912 A.C. 35; Glasgow Coal Co. Ltd. v. Walsh 1915 C 1020 : 8 B.W.C.O. 635; Dennis v. White 1917 A.C. 479; Indian: Padam Debi v. Raghunath Rai : AIR1950Ori207 ; Jaffar v. Ismail ; Chillu Kahar v. Bum & Co., Ltd. : (1953)IILLJ202Cal : 1953 I L.L.J. 202 ; Indian News Chronicle, Ltd. v. Sasarus A.I.R 1951 Punj. 102; 3 F.J.R. 190; Rajapalia v. A.I.R. 1949 Cal. 121]

20. It is essential in order to impose liability upon an employer for the payment of compensation, that there should be some substantial causal relationship between the employment and the injury or disability and it is not sufficient to show merely that it occurred while the employee was in the employer's service. The form of expression commonly used in compensation statutes to describe this relationship is 'arising out of and in the course of the employment.' Under this expression used in the conjunctive form, a double condition is imposed, both of which must be satisfied in order to confer a right to compensation. In considering the meaning of the complete expression 'arising out of and in the course of 'the Workmen's Compensation Acts, it is to be observed that while an accident arising out of an employment usually occurs in the course of it, it does not necessarily or invariably do so, and that an accident which occurs in the course of an employment does not necessarily arise out of it. The words 'arising out of' involve the idea of causal relationship between the employment and the injury while the term 'in the course of' relates more particularly to the time, place and circumstances under which the injury occurred. The phrases are, therefore, not synonymous, and it is held, accordingly, that where both are used conjunctively as in the Indian Workmen's Compensation Act, a double condition has been imposed, both terms of which must be satisfied in order to bring a case within the Act. It has been said that the phrases in question should be given a broad and liberal interpretation. Whether an injury arises out of and in the course of the employment, so as to be compensable under the Workmen's Compensation Act, depends upon the peculiar circumstances of each case. The question may not be resolved by reference to any fixed formula. The test laid down by Lord Sumner in Lancashire and Yorkshire Rail Co. v. Highley 1917 A.C. 352 has been frequently adopted and it is this: Was it part of the injured person's employment to hazard to suffer or do that which caused the injury? Was it 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 the injury? I have dealt with this complete expression' arising out of and in the course of the employment 'in another matter wherein I have summarized the principle deducible from the case law both under the English as well as the Indian Acts. I may point out here that the American Workmen's Compensation Acts which differ from State to State, use either the complete expression in the conjunctive form or in the disjunctive form in which case the fulfilment of either of the alternative conditions satisfies the statutory requirement in this respect. In some instance, in addition to the phrase 'arising out of and in the course of' the employment, the American statutes employ such a phrase as 'proximately caused by the employment' or 'due to a condition or conditions of such occupation or employment.' It seems that the effect of such additional phrase is merely to emphasize the necessity for a causal relationship between the employment and the injury without affecting the character or degree of such relationship. But the additional phrase 'due to a condition or conditions of such occupation or employment' has been construed as effecting a substantial increase in the element of compensability, requiring that the injury should have been due to a risk or danger inherent in the employment. But in the absence of any express provision, or of language requiring such a construction, an injury, to be compensable, need not be of a kind which might be anticipated by the employer or which is peculiar to the employment [58 Am. Jur. Section 209 ; English decisions : Fitzgerald v. Clarke (1908) 2 K.B. 796; Than v. Sinclair 1917 A.C. 127; Upton v. Great Central Railway Co. 1924 A.C. 302; Davidson v. M'Rold : 1918 A. C. 304 ; Indian: Trustees of the Port of Bombay; v. Yamunabai : (1952)ILLJ1Bom ; Gauri v. Radhakishan Mills : AIR1938Cal220 ; Central Glass Industries, Ltd. v. Vadidul Hussain : AIR1948Cal12 ; Nawah Ali v. Hanuman Jute Mills : AIR1933Cal543 ; Champi v. Shaw Wallace Co. ; K. Raida Brahman v. Traffic Manager A.I.R. 1943 Mad. 353; Munsi & Co. v. Ycshwant Thakuram A.I.R. 1948 Bom. 44; Eastern Railway v. Mahabir : AIR1954All132 ; Laxmibai Atmaram v. Bombay Port Trust : (1954)ILLJ614Bom ; Bhagubai v. General Manager 56 Bom. L.R. 509 1954 II L.L. J. 403; National Iron and Steel Co. v. Manorama : (1952)ILLJ361Cal ],

21. In this connexion it has to be noticed that the fact that negligence on the part of the employee may have caused or contributed to his injury or death does not affect the right to compensation therefor. In fact, under the Indian Workmen's Compensation Act, the proviso to Section 3 protecting the employer in the cases of wilful disobedience of an order or rule by the workman, result in injury arising out of and in the course of the employment, does not apply at all if the injury has proved fatal [Padam Debi v. Raghunath : AIR1950Ori207 , But even otherwise under the Compensation Acts the fact that negligence on the part of the employee may have caused or contributed to his injury does not affect his rights to compensation therefor [Alla Baksh v. Mian Mahammud A.I.R. 1935 Lah. 670; Shaikh Jaffarji v. Ismail A.I.R. 1937 Nag. 317]. This negligence or even gross or culpable negligence is different from wilful misconduct which implies deliberateness, not mere thoughtlessness or mere lack of judgment [Bhutnath v. Tirat Maistry A.I.R. 1949 Cal. 295]. It has been said to involve a conduct to which moral blame attaches--the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton recklessness and disregard of its probable consequences. The concept embodied in the words wilful misconduct or wilful disobedience of express orders concern the mental state of the party at the time of the calamity and is the antithesis of the idea imported by the word 'accident.' The seriousness contemplated by the statute must attach to the act in the doing of it however and not merely to the consequence thereof as they actually develop [58 Am. Jur. ibid. Section 200, p. 708]. This exclusion of contributory negligence is based upon the following grounds; First of all, compensation is not a remedy for negligence on the part of the employer but it is rather in the nature of insurance of the workman against certain risks of accident [Secretary of State v. Geeta A.I.R. 1938 Nag. 91]. Secondly, as pointed out, when the English Workmen's Compensation Act of 1897 was passed, the defence of contributory negligence had been made an excuse for avoiding all liability whatever, because after all contributory negligence most often would be nothing more than what is called the act of God. Vivian Bose, J. has well pointed out in Shaik Jaffarji Hiptullah Bhove Gin and Press Factory v. Shaik Ismail A.I.R. 1937 Nag. 317]:

Men who are employed in work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this kind and the like nature form the ordinary hazards of employment.

In foreign countries this risk of compensation for all accidents is described as a risk professionaire,--that is to say, a risk which is one of the charges upon the trade in which it is incurred; and it is supposed to be as much a part of the cost of producing the article as for instance insurance, against fire or even the cost of materials [East Indian Railway v. Mahabir : AIR1954All132 ].

22. Bearing these principles in mind, if we examine the facts of this case, we find that the deceased workman sustained the injury as a result of accident arising in the course of and out of the employment and that even if she had been careless and the unexpected falling of the tree on her was due to act of God, viz., a gust of wind, it would still be compensable.

23. Fifthly, that the accident occurred in or about the premises on which the principal had undertaken to do the work, viz., the canal, and that it was otherwise under his control or management, cannot admit of any dispute whatever. The scope of this section is that the principal shall not be liable to pay compensation to the contractor's workman who may be working on the premises of his own employer, over which the principal has no control or in the public street. The premises on which the principal has undertaken to execute the work may include the whole area of the land on which the work or any part of it is to be performed [Atkenson v. Lumb (1903)1 K.B. 861; Rogers v. Cardiff Corporation (1905) 2K. B. 832]. But it does not include the public streets through which, as incident to and in the course of the work, the workman may have to pass [Andrews v. Andrews (1908) 2 K.B. 567]. This is not the case here. The words 'on, in, or about' were interpreted to mean either on the land or premises of the employer or the land or premises where he was engaged with his workmen in doing the work, or in close proximity to such places [Powell v. Brown (1899) 1 Q.B. 157.] The words 'on, in or about' have received judicial interpretation in connexion with railways, factories, mines, engineering works and building operations, and have been held to be a geographical expression involving the idea of certain physical continuity to the premises or works in question [58 Am. Jur. Sections 214 and foll] would certainly come within the phrase 'on, in or about' the premises.

24. These five conditions having concurred in this case, this Ramaswami would be entitled to be compensated if he is shown to be eligible for receiving the compensation under Section 2(1)(d) of the Act. In this case the dependants claiming compensation fall under both the heads of Section 2(1)(d). The minor legitimate son and unmarried legitimate daughter will fall under Section 2(1)(d)(i) and the widower (husband) who in the circumstances of this case is shown that he was in part dependent on the earnings of his wife at the time of her death [Ponnuswami v. Rangaswami : (1953)IILLJ222Mad ; Saint Joseph v. Mariashos (1952)2 M.X.T. 436], would fall under Section 2(1)(d)(ii).

25. In the result, the order of the Additional Commissioner for Workmen's Compensation is correct and this appeal is hereby dismissed with costs.


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