1. This is an appeal preferred against the order made by the learned Additional Commissioner for Workmen's Compensation, Madras, in W.C. Case No. 615 of 1949.
2. The facts are.- The Highways Departmental Lorry No. M.D.C. No. 2398 was hired out to the contractor A.P. Kanari, for conveying gianite metal from the quarry at mile 24/5 on the Tellicherry-Bawali road to mile 19/5-6 of the same road. The agreement executed by the contractor in this behalf is Exhibit A-1. The application of the contractor for hiring the lorry is Exhibit A-2. The contractor acknowledged the receipt of the lorry from the Highways Department in his letter Exhibit A-3. After having thus obtained the lorry on hire from the Department, the contractor started his work. On 21st August, 1949, while the lorry was plying up the ghats empty for reloading metal, it had to negotiate an almost right-angular curve just after passing the 23/3 furlong stone. As the lorry swerved, one of the four coolies inside the lorry, C. Kunhiraman, lost his balance and was thrown out of the lorry. As a result of this fall he sustained injuries and died while he was taken to the Hospital at Kuthuparamba. The matter was reported to the Police, who investigated into this accident. The Police records are evidenced by Exhibit B-3. The Divisional Engineer admitted the accident as well as liability to pay compensation to the dependants of the deceased workman in his capacity as the principal employer. He accordingly deposited a sum of Rs. 1,500 with the Additional Commissioner for Workmen's Compensation. Thereafter he filed a claim under Section 12(2) of the Workmen's Compensation Act claiming indemnification by the contractor.
3. The case for the contractor was that the accident did not arise out of and in the course of the deceased workman's employment under him on account of the following facts. The deceased workman was sitting on the hand rail of the lorry against instructions. Then, when the lorry was taking a sharp curve at mile 23/2 the deceased had let go his hold of the rails and was making funny signs with his hands to a dumb friend who was going by the road at that time. Therefore, ho acted in a negligent and careless manner and brought about an added peril, exonerating the employer from liability to compensate.
4. The Additional Commissioner for Workmen's Compensation held that first of all the conduct attributed to the deceased workman was not proved; and secondly, in a fatal accident such alleged acts of negligence or carelessness would not prevent the dependants of the deceased workman from claiming compensation under Section 3(1) of the Act. Therefore he ordered the contractor to indemnify the Divisional Engineer in a sum of Rs. 1,500. Hence this appeal by the defeated contractor.
5. Section 3(1) of the Workmen's Compensation Act runs thus:
If personal injury is earned 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.
6. The term 'accident' has nowhere been defined but it is now settled law that the expression 'accident' generally means some unexpected event happening without design. As pointed out in Halsbury's Laws of England, Edn. 2, Vol. 34, page 816, to decide whether an occurrence is an accident, it must be regarded from the point of view of the workman who suffers from it, and if it is unexpected and without design on his part, it may be an accident. Fnton v. Thorley L.R. (1903) A.C. 443; Clover Clayton v. Hughes ; Trim Joint School v. Kellly L.R. (1910) A.C. 667; Glascow Coal Co., Ltd. v. Welsh (1915) S.C. 1020; Shaik Jafarji v. Shaikh Ismail ; Padam v. Raghunath : AIR1950Ori207 .
7. That this was an accident in the sense that it was an unlooked for mishap or untoward event which brought about the fatal personal injury to the workman, cannot be doubted.
8. The second requisite is whether this accident arose out of and in the course of the deceased workman's employment. The term 'arising out of employment' used both in Section 1 of the English Workmen's Compensation Act and Section 3 of the Indian Workmen's Compensation Act, has given rise to an expensive case-law. It is enough to refer to the following well-known definitions.
9. Lord Summer observed in Lancashire and Yorkshire Railway v. Highley L.R. (1917) A.C. 372 as follows:
Whether in any given case an accident arises on the one hand out of the injured person's employment, although he has conducted himself in it carelessly or improperly, or, on the other hand arises not out of his employment but out of the fact that he has gone outside the scope of it, or has added to it some extraneous peril of his own making, or has temporarily suspended it while he pursues some excursus of his own, or has quitted it altogether, are all questions which, often as they arise, are susceptible of different answers by different minds and are always questions of some nicety.... I doubt if any universal test can be found.... In the last analysis each case is decided on its own facts. There is, however, in my opinion, one test which is always at any rate applicable,... 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 yea, 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.
10. In Thom v. Sinclair L.R. (1917) A.C. 127 it was pointed out that the injury must not only arise 'in the course of' but also 'out of' the employment. Proof of the one without the other will not bring a case within the Act. While an accident arising out of an employment almost necessarily occurs in the course of it, the converse does not follow. An injury which occurs in the course of the employment will ordinarily arise out of the employment. But not necessarily so. The expression applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. It must appear that there is some causative connection between the injury and something peculiar to the employment. The nature of the occupation may sometimes supply causative relation. But it is only as to some employments that this is so. The Court is directed to look at what has happened proximately, and not to search for causes or conditions lying behind as would be the case if negligence on the part of the employer had to be established.
11. In deciding whether the employee was acting within the scope of employment, the Courts resort to the old rules respecting the time and place of the calamity, temporary stoppage of labour, responding to physical demands, eating, drinking, visiting a latrine, or going from the place of employment. To bring his case within the Compensation Act the employee must show, as he was required to establish under the Common Law, that he was at the time of the injury enagaged in the employee's business, or in furthering that business and was not doing something for his own benefit or accommodation.
12. In the Trustees of the Port of Bombay v. Shrimati Yamunabai : (1952)ILLJ1Bom , Dixit, J. observed:
The expression 'arising out of his employment' suggests both the time as well as the place of employment. The expression 'out of' conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman as a result of the accident. That, to my mind, is the literal and strict construction of the section. But in my opinion, the words 'arising out of his employment' are wide enough so as to cover a case, where there may not necessarily be a direct connection between the injury caused as a result of an accident and the employment of the workman. And 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.
13. See also Central Glass Industries v. Abdul : AIR1948Cal12 ; Hawab Ali v. Hanuman Jute Mills : AIR1933Cal513 ; Champath v. Shaw Wallace ; Lee Shi v. The Mines of Burma Ltd. A.I.R. 1939 Rang. 428; Ramabrahman v. Traffic Manager : AIR1943Mad353 ; Ushin v. Ma Shin A.I.R. 1940 Rang. 18; Munshi v. Yeshwant A.I.R. 1948 Bom. 44; Tobacco Manufacturers v. Marian Stewart : AIR1950Cal164 .
14. In the present case that the personal injury resulting from the accident arose out of and in the course of the deceased workman's employment under this contractor has been established as it has been held in Varadarajulu v. Masya Boyan (1955) 2 M.L.J. 590 : I.L.R. (1955) Mad. 798 (C.J. and Umamaheswaram, J.) that a workman will be acting in the course of his employment when he travels in a conveyance provided by his employer.
15. The final point for consideration is whether the proviso to Section 3(1) of the Act saves this employer from liability. This proviso applies only to those cases where injury has not resulted in death. Where, however, an injury has resulted in the death of a workman and has been caused by an accident arising out of and in the course of his employment, it would be immaterial that the workman (a) was at the time of the accident under the influence of drink or drugs or (b) willfully disobeyed any order or rule expressly made for the safety of workmen, or (c) wilfully removed or disregarded any safety guard or other device knowing to have been provided for the safety of workmen. The aforesaid exceptions (a), (b) and (c) would apply only where an injury has not resulted in the death of the workman.
16. Even in cases where the personal injury has not resulted in death, the proviso lays down that the employer shall not be liable for an injury caused by accident (even though arising out of and in the course of the employment) only if the following conditions concur:
(i) The injury must not have resulted in the death of the workman.
(ii) The workman must have wilfully disobeyed an order or a rule.
(iii) Such order or rule must have been made or framed expressly for the purpose of securing the safety of workmen.
(iv) Such accident must have been directly attributable to such wilful disobedience.
17. In other words, before this proviso can operate in an employer's favour, each of the seven distinct conditions must be satisfied. Firstly, an order or rule must have been given or framed; a mere warning or disclaimer of responsibility is not enough. Secondly, its substantial purpose must have been that of securing the safety of workmen as such. Thirdly, the order or rule must contain words which, on the face of them, fairly and clearly indicate that its purpose is that of securing the safety of workmen; otherwise it is not 'expressly' so given or framed. Fourthly, its terms must have been brought to the notice of the individual workman who is injured. Fifthly, it must have been disobeyed. Fifthly, the disobedience must have been wilful, neither, for example, merely negligent, nor due to a mistaken mode of doing a particular task, nor due to a wrong decision in an emergency, but deliberate. Seventhly, the accident (causing the injury, not resulting in death) must have been directly attributable to the disobedience : Khairoj Jama v. Matar Din A.I.R. 1940 Rang. 250. Where any of the aforesaid conditions is absent, this proviso shall not apply. Thus, if death results from the accident or the disobedience of a rule or order is not wilful (but only accidental or negligent) or the rule or order is not expressly framed for the safety of workmen or the disobedience is not directly (but only indirectly) attributable to disobedience of rule or order, this proviso shall not apply and the employer shall not be protected. This proviso is applied only to cases of injuries not resulting in death; its applicability is limited to those cases where injury has not resulted in death; where the injury has, however, resulted in death, the question about the disobedience of any rule or order is not material so long as it can reasonably be held that the accident arose out of and in the course of the employment Padam Debi v. Raghunath Roy : AIR1950Ori207 and also Lee Shi v. Consolidated Tin Mines of Burma Ltd. A.I.R. 1939 Rang. 428; Mst. Champi v. Shaw Wallace and Co. I.L.R. (1938) Nag. 200; Ramabrahman v. Traffic Manager, Vizagapatnm Port : AIR1943Mad353 and Gane v. Norton Hill Colliery Co. L.R. (1909) 2 K.B. 539, cited with approval in Veerabhadra Naicker v. Gangamma : AIR1942Mad641 .
18. The term 'wilful disobedience' shows that mere disobedience is not sufficient because it may be the result of forgetfulness or the result of the impulse of the moment. The statute only exempts the employer from liability when the disobedience is wilful, that is, deliberate and intended. It involves conduct of a quasi-criminal nature, the intention of doing something either with the knowledge that it is likely to result in a serious injury or with a wanton and reckless disregard of the probable consequences. The concept embodied in these words concerns the mental state of the party at the time of the calamity and is the antithesis of the idea imported by the word 'accident' Lee Shi v. Consolidated Tin Mines A.I.R. 1939 Rang. 428, Alla Baksh v. Mohammed A.I.R. 1935 Lah. 670; Bhut Nath v. Tirat Mistry A.I.R. 1949 Cal. 259; Tiku Khar v. Equitable Coal Co. : AIR1930Cal58 ; Urmila Dasi v. Tata Iron and Steel Co., Limited : AIR1928Pat508 ; Maung Ba v. Consolidated Tin Mines A.I.R. 1940 Rang. 220; Mating Ba v. Maung Ohn A.I.R. 1938 Rang. 289; Johnson v. Marshal l L.R. (1906) A.C. 409 :75 L.J.I.B. 868 : 22 T.L.R. 565; Devy v. Subramania Iyer (1953) 2 M.L.J. 625 (definition of wilful discussed).
19. The principles upon which these decisions, holding that mere negligence or even gross or culpable negligence on the part of the workman would not disentitle him to compensation, proceed are twofold. The Act itself was founded on the German system of insurance of workmen against accident happening in the course of their employment, a system which has since been largely accepted by almost all civilised States. To cite Ruegg.
The Workmen's Compensation Act of 1897 was based upon, and introduced, a new and somewhat startling principle. By this Act the employer was, for the first time, made liable to compensate his workmen for injuries, quite irrespective of the consideration whether or not either he, or any one for whose acts he was in law liable, had committed any breach of duty to which the injury was attributable. The intention of the Act made him an insurer of his workmen against the loss caused by injuries which might happen to them whilst engaged in his work. This insurance, it is true, was limited in extent, but so long as it arose out of and in the course of the employment, was quite irrespective of cause.
20. Secondly, as pointed out by Vivian Bose, J. (as he then was) in Shaik Jafarji Hiptulla Bhoy Gin & Press Factory, Amraoti v. Shaik Ismail I.L.R. (1937) Nag. 88.
An accident of this kind is an ordinary hazard of such an employment. While a man is pouring oil his attention may wander for a moment, or a muscle may give momentarily through fatigue; his attention may be diverted; he may slip; or he may even be careless enough to attempt something else at the same time such as hail a comrade, or throw an article across the room, or extract something from his pocket; an accident can occur in any one of these and many other ways. Of course in most cases it would be due to his own carelessness and negligence; of course he would not be entitled to recover at Common Law. But the whole purport of the Act is to alter that. It would be otiose otherwise. Men who are employed to 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 and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act.
See the leading case Harris v. Associated Portland Cement . L.R. (1939) A.C. 71, wherein negligence is discussed by Lord Atkin and others.
21. Therefore, the proviso to Section 3(1) will not save this contractor from liability because first of all the personal injury has resulted in the death of the workman and secondly even if he had been alive, a mere negligence or carelessness on the part of this workman would not amount to wilful disobedience of the workman to an order expressly given or a rule expressly framed for the purpose of securing the safety of workmen and concerning which incidentally, as pointed out by the learned Additional Commissioner, there was no evidence even and the allegation itself seems to be an after-thought.
22. There is no substance in the contention regarding the non-insurance of the Government owned transport because insurance of Government owned motor vehicles is exempted under Section 94(2) of the Motor Vehicles Act.
23. In the result, this appeal is dismissed with costs.