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Kamala Vs. Madras Port Trust (by Chairman) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1966)ILLJ690Mad
AppellantKamala
RespondentMadras Port Trust (by Chairman)
Cases ReferredJanaki Amtnal v. Divisional Engineer
Excerpt:
.....the servant to demand proof of his superior's right to give an order before obeying it, and there is much to be said in favour of the view-expressed in statnam v. this witness as well as the appellant have deposed that ever since the deceased joined the port trust he used to carry food for his master from his house in st. the lascars, on their part, had recognized it as part of their duties, at the same time knowing fully well that the said act was unauthorized......accident which arose out of, and in the course of, his employment under the respondent, the madras port trust, represented by its chairman.2. the short facts necessary for the disposal of the appeal are the following. devarajan, the husband of the appellant, was a lascar in the madras port trust dredger under the supervision of one mr. watts, an engineer. on the fateful day, namely, 6 june 1961, devarajan reported to duty and also dropped his token at the counter. at about 6-30 p.m. on the same day, mr. watts, under whom the deceased was working, asked the deceased to go to his (watts') house in st. thomas mount and fetch his night dinner. accordingly, devarajan went by cycle to the house of mr. watts, collected the dinner, and was returning to the madras port trust, when he was knocked.....
Judgment:

Venkatadri, J.

1. This is an appeal against an order passed by the Additional Commissioner for Workmen's Compensation, Madras, refusing to award compensation to the appellant, on the ground that her husband, Devarajan, did not meet with his death as a result of an accident which arose out of, and in the course of, his employment under the respondent, the Madras Port Trust, represented by its Chairman.

2. The short facts necessary for the disposal of the appeal are the following. Devarajan, the husband of the appellant, was a lascar in the Madras Port Trust dredger under the supervision of one Mr. Watts, an engineer. On the fateful day, namely, 6 June 1961, Devarajan reported to duty and also dropped his token at the counter. At about 6-30 p.m. on the same day, Mr. Watts, under whom the deceased was working, asked the deceased to go to his (Watts') house in St. Thomas Mount and fetch his night dinner. Accordingly, Devarajan went by cycle to the house of Mr. Watts, collected the dinner, and was returning to the Madras Port Trust, when he was knocked down by a lorry on the highway near St. Thomas Mount. He died on the spot.

3. The widow of the deceased filed an application before the Additional Commissioner for Workmen's Compensation, Madras, and the Chairman of the Madras Port Trust opposed the application on the ground that Devarajan did not die as a result of an accident arising out of and in the course of his employment. Evidence was adduced that it was usual for the dredge master to send the lascars to fetch his food from his house outside the Madras Port Trust, It is also adduced in evidence that the dredge master used to direct the lascara to attend to duties other than the normal duties of a lascar such as, painting, chipping, wireplacing, etc. Durairaj, another lascar, deposed that the dredge master used to send him and also the deceased to do his personal work outside the port trust during working hours. The dredge master used to send Devarajan to fetch his food after Devarajan reported to duty, and he also had gone to the dredge master's house once or twice by train to fetch food for him.

4. The Additional Commissioner for Workmen's Compensation, after reviewing the case-law cited before him, came to the conclusion that the deceased was employed as a lascar to attend to work in the Madras Port Trust, that the act of bringing the food to his master was not one of his duties as an employee of the port trust and that the act of the deceased could not have even casual connexion with his employment in the port trust. Finally, he held that the deceased Devarajan did not meet with his death as a result of an accident which arose out of and in the course of his employment under the port trust. The widow of the deceased has filed the appeal.

5. The only point, therefore, that arises for consideration is whether the deceased died of an accident arising out of and in the course of his employment.

6. The words 'arising out of and in the course of employment' have been the subject-matter of judicial interpretation, ever since the introduction of the Workmen's Compensation Act.

7. Loreburn, L.C., in Moore v. Manchester Liners, Ltd. 1910 A.C. 498 said:

The first inquiry is: Was he doing any of the things which he might reasonably do while employed ?...'

' The next inquiry is: Did the accident occur within the time covered by the employment ...The last inquiry is: Did the accident occur at a place where he may reasonably be while in the employment ?

8. The phrase 'in the course of employment' presents two principal questions. The first concerns the period of employment. When does it begin and end, and during this period, when is its continuity broken The second raises the question as to how far the servant during the period of employment places himself outside thereof by doing that which he is not employed to do, or by doing hia appointed work at a place other than that which his master has appointed for that purpose, or by deliberately adopting a method of performing the work other than that prescribed by his master or forbidden by him. According to Fletcher Moulton, L.J., in Riley v. Holland and Sons, Ltd. (1911) 1 K.B. 1029 , ' In the course of the employment' does not mean ' in the course of industrial work.' The course of employment, therefore, is neither limited to the period of actual labour nor is it extended to include all acts necessitated by the workmen's employment. The only difficult questions which arise are those concerning his temporarily quitting the service and his return thereto.

9. Generally, where an employee has fixed hours and place of work, injuries occurring in the premises while he is going to and returning from the work before or after working hours, or at lunch time, is compensable. But, if the injury occurs off the premises, it is not compensable subject to several exceptions. The rule excluding off-premises injuries during the journey to and from work does not apply, if the making of that journey, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed. When employees are sent on special missions, their journey is an inherent part of the service. Sometimes, it may be a special errand. The trouble and time taken for doing this special errand is sufficiently substantial to become an integral part of the service itself. A compensable injury must arise not only within the time and space limit of the employment, but also in the course of an activity related to the employment. An activity is related to the employment, if it carries out the employer's purposes or advances his interest directly or indirectly. Under the modern trend of decisions, even if the activity cannot be said in any senBe to advance the employer's interest, it may still be in the course of employment, if, in view of the nature of employment, environment, the characteristics of human nature, the custom and practices of the particular employment, the activity is, in fact, an Inherent part of the conditions of the employment. Sometimes the errand is made not in the performance of any duty but a brief service. But the brief service is equally essential to the successful carrying on of the employer's business. The Act does not expressly say that the employee must, at the time of the injury, have been benefiting the employer. It merely says that the injury must have arisen in the course of the employment, so that if he can show that the particular activity, beneficial or not, was indeed a part of his employment, either, because of its general nature or because of the particular custom and practice in the individual concern, the statute is satisfied. Larson's Workmen's Compensation Law, Vol. 1, contains a number of cases on this subject. At p. 305 of the book, Larson has cited the case of Krause v. Swartwood 174 Minn. 147, in which a physician's secretary, who ordinarily lunched at home, was requested by her employer to take her lunch at a nearby restaurant because of his absence, and to have phone calls from the office transferred there. The lunch was to be paid for by the employer. The secretary suffered chemical poisoning from coffee made in a new urn at the restaurant, and compensation was awarded by the Supreme Court of Minnesota reversing the Industrial Commission's denial. In Skolnick v. Elgin Chair Inc. 273 App. Div. 833, reported of the book, an office employee had taken home some cheques of the employer at his request to deposit them on her way to work in the morning. She fell while proceeding towards the bank. Compensation was awarded. In another case, reported on the same page of the book, Kristianson v. Lehman, a cook was asked by her employer to pick up some medicines at the drug store on her way to work in the morning. While on the direct route between her home and her employer's residence, and before reaching the drug stores, she slipped and fell. Compensation was awarded. But, in another case, reported at p. 260, Mims v. Nehi Bottling Company, it was the employee's custom to post the outgoing mail in a mailbox on his way home. Before he got to the mailbox, he turned aside to help in the rescue of some laundry workers whose plant was being filled by escaping gas. Compensation was denied on the ground that this was a deviation; but the Court expressly stated that the employee was in the course of his employment as long as he stayed on the direct route. It was observed that the regularity of the practice was undoubtedly a substantial element in bringing the trip within the course of employment. A reading of these cases cited by Larson in his Workmen's Compensation Law, Vol. 1, shows that, if there is a custom which has come into practice for an employee to do a particular service outside the premises, irrespective of whether it is connected with the service or not, the injury arising in an accident while doing the service is compensable on the ground that it arose in the course of employment.

10. In 25 Harvard Law Review, there is an illuminating article at p. 401 on the interpretation of the words ' arising out of and in the course of employment.' The learned author, at p. 418 of the Review, says:

Another important question is how far a servant is entitled to go outside his appointed sphere in obedience to the orders of a superior. Of course, if such superior has the power to fix the spheres of labour for the workman, a workman, by obeying them, merely passes into a new 'course of employment' but even if he has not, it seems that the servant is justified if he honestly believes that such superior is authorized to employ him.... Yet, if, as seems to be the case, the question of the servant's right to do work different from that which he is employed to do depends upon whether it is to the master's interest that he should do so, it would appear, that on the whole it is better to risk an occasional additional liability rather than that all discipline should be destroyed by requiring the servant to demand proof of his superior's right to give an order before obeying it, and there is much to be said in favour of the view-expressed in Statnam v. Galloway 109 L.T. J. 133 that discipline requires a servant to obey orders of a superior though he knows they are unauthorized (italicizing mine); indeed the workman has usually no actual choice, save between obedience and immediate or future dismissal.

A similar situation has arisen here. Durairaj, another lascar, who has put in fourteen years of service in the port trust, has deposed that the dredge master used to give the lascars orders to do various jobs outside the premises of the port trust and that the deceased used to fetch food for the dredge master. In cross-examination, this lascar said that besides the deceased Devaraj there were other lascars also who were asked to fetch food for the officer, that they were stopped from service when they refused to fetch food and that one such lascar was one Abbas who was stopped from service about four years ago. This witness as well as the appellant have deposed that ever since the deceased joined the port trust he used to carry food for his master from his house in St. Thomas Mount. Therefore, it is fairly clear that it had become the practice among the dredge masters to order the lascars to bring their food from their house outside the premises of the port trust. The lascars, on their part, had recognized it as part of their duties, at the same time knowing fully well that the said act was unauthorized. Indeed, the lascars have no choice, save between obedience and immediate or future dismissal. As a matter of fact, the port trust authorities, soon after the accident, issued an office order No. 38, dated 9 August 1961 (the accident was on 6 June 1961), that no port trust employee was to be employed by an officer on private work unless with the specific sanction of the Chairman in writing. learned Counsel for the port trust was not able to bring to my notice any order to the effect that there was previously any such order prohibiting the officers from sending their servants outside the premises in connexion with their work. Therefore, it is clear that, till this office order No. 38 was issued on 9 August 1961, the dredge masters were under the genuine impression that the lascars on duty could legitimately be asked to bring food from outside the premises, in order to enable them to supervise the work in the port trust without interruption. It should also be remembered that the act of the lascar in bringing the food for his master was only to facilitate the work of the master. The workman is actuated by a honest belief, however mistaken or wrong-headed it may be, that in that way, he would only facilitate the work of his master, and the workman has no personal end to serve. In all these cases, as observed by Dixit, J., in Trustees of the Port of Bombay v. Smt. Yamunabai 1952 I L.J. 1, the words ' arising out of his employment' are wide enough so as to cover a case where there may not necessarily be a direct connexion between the injury caused as a result of an accident and the employment of the workman, and that there may be circumstances which would go to show that the workman received personal injury as a result of the accident arising out of his employment. As observed by Ramaswami, J., in Janaki Amtnal v. Divisional Engineer, Highways, Kozhlkode 1956 I L.J. 233:

What has to be considered is the employment as such, its nature, its conditions, its obligations, and its incidents. It must appear that there is some causative connexion between the injury and something peculiar to the employment... The employee must, in order to bring his case within the Act, show that he was at the time of the injury engaged in the employer's business or in furthering that business and was not doing something for his own benefit or accommodation.

11. In the view I have taken of the circumstances of this case, it can be said that, when the dredge master Mr. Watts ordered the deceased to bring his dinner from his house outside the premises of the port trust in order to enable him to do his work without interruption, that, when the deceased, in pursuance of the order of his master, went to St. Thomas Mount, that when the deceased was returning back to port trust with the dinner of his master, he met with an accident (all these things happening during the lascar's working period), the workman died of an accident arising out of and in the course of his employment. The appeal is, therefore, allowed. The compensation is fixed at Rs. 2,100, There will be no order as to costs.


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