1. This is an appeal from an order of the learned Commissioner for Workmen's Compensation awarding the applicant respondent a sum of Rs. 1200/- as compensation together with certain costs.
2. The applicant was the mother of a boy who, it is said, died as the result of an accident arising out of and in the course of his employment. The boy admittedly was employed by the appellants in a canteen or tea shop and it was part of his duty to take tea from the tea shop which was outside the factory gates to various persons in the factory. On 28-4-1949, late in the afternoon the boy was returning to the tea shop after having served tea to certain persons in the factory when he had to pass a mob of workmen who were leaving the factory. This mob, it transpired, was attacking thepolice and the police had to fire in self-defence. Unfortunately a bullet struck this boy and he was severely wounded. He was taken to hospital, but unfortunately died the following day.
3. These proceedings were brought for compensation and it was alleged that the death was due to an accident arising out of and in the course of the boy's employment.
4. The employers filed a written statement and the point made by them was that the death was not due to accident. They also claimed that the wages of the boy were not correctly stated.
5. The only issue which the learned Commissioner had to try was whether the accident arose out of and in the course of the employment. He found that the accident did not (sic) arise and he accordingly awarded the mother of the boy as a dependent of the deceased workman the compensation which I have already stated.
6. Mr. Sanyal on behalf of the appellants has taken a point that there was no evidence that this boy was a workman within the meaning of that term as used in the Workmen's Compensation Act. It is to be observed that this point was never raised before the learned Commissioner and indeed the point was not taken in the written statement. On the contrary the written statement proceeds on the basis that the. deceased boy was a workman, but that his monthly wages were not properly stated. There was no issue framed on this and it appears to me that we cannot allow- the employers at this stage to raise this point for the first time. It was in effect conceded in the court below that he was a workman and the whole case proceeded upon that basis. Once there was in fact an admission that the boy was a workman, no further evidence to establish that was required. It would indeed be most unjust to allow the point to be taken for the 1st time at this stage & to hold that the evidence did not establish that the boy was a workman. It was obviously conceded and, therefore, the point cannot be raised now.
7. Mr. Sanyal then contended that the accident did not arise out of and in the course of the boy's employment. Clearly the accident arose in the course of the employment because the boy had been delivering tea to persons in. the factory as it was his duty to do and was returning with a tea tray and tea-pot thereon to the canteen or tea shop as he was bound to do. Whilst so returning he received this bullet wound and it is clear that he received it in the course of his employment, that is, whilst he was actually doing what he was employed to do.
8. Mr. Sanyal is prepared to concede that the accident was in the course of the employment, but he contends that the accident did not arise out of the employment. His argument is that death was not due to any special risk of the employment. He has urged that it could not possibly be said that receiving a bullet fired by the police in self-defence can never (sic) be regarded as a special risk of employment of anyone in a canteen.
9. I do not think that it was necessary for the respondent to establish that the death resulted from some special risk to which the boy was exposed. What has to be decided is whether death was caused as the result of arisk to which the boy's employment in fact exposed him.
10. It was at one time thought that an accident arose out of and in the course of the employment if it was established that a person was injured at a place where he was injured because his employment required that he should be at that place. No further connection it is said was necessary. That view, however, has not been accepted and there must be some connection between the employment and the risk causing the injury. The matter was considered by the House of Lords in the case of -- Mrs. Margaret Thom or Simpson v. Sinclair', (1917) A.C. 127. There a woman employed by a fish-curer, while working in a shed belonging to her employer, was injured by the fall of a wall which was being built on the property of an adjoining proprietor, with the result that the roof of the shed collapsed and the woman was buried under the wreckage.
11. It was contended that the falling of a wall on some third party's property could not possibly be regarded as a risk of the woman's employment in the fish-curing shed. The House of Lords however held that the accident arose, out of her employment because the fall of the wall on the third party's property damaged the roof of the shed and that was the direct cause of the injury.
12. The question was again considered by their Lordships of the Privy Council in the case of -- 'Brooker v. Thomas Borthwick and Sons (Australasia), Ltd.', (1933) A. C. 669. In that case building at Nelson, New Zealand, having collapsed owing to a severe earthquake, debris therefrom fell upon three men who were 'workers' within the provisions of the Workers' Compensation Act, 1922, two of them being at work on the premises where they were employed, and the third being in the public street in the performance of his duty as an hotel porter; a further worker while working lost his balance owing to the earth-quake and fell down a steep incline on the premises where he was employed. The Judicial Committee of the Privy Council held in each case that the accident to the worker was one 'arising out of the employment' within the meaning of Section 3, Sub-section 1, of the Act above mentioned without it being shown that by reason of his employment he was specially exposed to risk incidental to earthquakes.
13. The phrase 'arising out of the employment' occurred in the New Zealand Act as it does in English Act and the Indian Act, and has the same meaning.
14. Dealing with risks of employment Lord Atkin who delivered the judgment of the Board observed at page 676:
'In the course of the discussion the House of Lords had been referred to four cases of injury by natural forces, the two cases of lightning; -- 'Andrew v. Failsworth Industrial Society Ltd', (1904) 2 KB 32 and--'Kelly v. Kerry County Council', (1908) 1 B W C C 194, and the two cases of 'Frostbite: Karemaker v. Owners of S. S. Corsican', (1911) 4 B W C C 295 and -- 'Warner v. Couchman', (1912) A C 35, where the principle had been adopted that where the injury was directly caused by such a natural force it has to be shown that the workman was especially exposed by reason of his employment to the incidence of such a force. Lord Haldane'sexposition was obviously intended to compromise those decisions. The principle which emerges seems to be clear. The accident must be connected with the employment:, must arise 'out of it. If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connection with the employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. So that if the roof or walls fall upon him, or he slips upon the premises, there is no need to make further inquiry as to why the accident happened.
This principle appears to be the foundation of the street risk decision, -- 'Dennis v. A. J. White & Co.', (1917) A C 479, which finally decided that a workman employed to go into the streets on his master's business who is injured by a risk of the streets establishes an accident arising 'out of the employment though the risk was shared by all members of the public using the streets in like circumstances.'
15. Later at page 678 Lord Atkin observed:
'Their Lordships' attention was drawn to the various decisions in cases in which workmen were injured by bomb and shells from bombardment during the war. They do not refer to them in detail, for they appear to confirm the conclusions which their Lordships have reached. Neither bombs nor shells have ordinarily anything to do with a workman's employment. It is, therefore, necessary to show special exposure to injury by them. They represent exactly for this purpose the operation of such forces as lightning, heat and cold. It is said, how capricious is the working of the law. If the bomb injures a workman directly he must show special exposure; if it injures him indirectly by bringing the roof down on him he can recover unconditionally. It is almost impossible to give statutory protection in any case in which the line of distinction may not appear narrow; but the dividing principle adopted is authoritative and appears to their Lordships to be logical, and they feel bound to adopt it.'
16. Mr. Sanyal's argument on behalf of the appellants is that the injury here was similar to an injury caused to a man by a bomb or a shell dropped by some hostile aeroplane or fired by some hostile gun. In such a case as Lord Atkin has pointed out in the observations last quoted, it would be necessary to show special exposure to injury from such bomb or shell. Mr. Sanyal contends that it was necessary in this case to show some special risk of exposure and unless such was shown no compensation could be granted.
17. It appears to me that the boy was specially exposed to the risk in this case. He had been sent into the factory to deliver tea to certain employees. In the meantime the police had appeared and had attempted to arrest what they considered to be a notorious absconder. The workmen leaving the factory had inter-vened and a mob had collected which had become unruly, if not riotous. That mob stood between the boy returning from the factory and the gateway and the tea shop and it was part of his employment to return the tea pot and tray once he had poured out tea to the tea shop. His way brought him past this unruly mob which was at the moment attacking some police officers. His employment specially exposed him to the risk which anybody is exposed to who has to pass an unruly mob with which the police are endeavouring to deal. As this boy was approaching the mob the police fired. It seems to me that having regard to the circumstances the boy's employment exposed him to that risk, and that being so his death can be said to arise out of and in the course of his employment. The bomb and shell cases referred to by Lord Atkin are cases where persons were injured by shells dropping at or near where these persons were working. This, however, is a different case. The shots were fired because an unruly mob were attacking the police. That unruly mob stood between this boy and the canteen to which his employment demanded that he should return the tea things. His employment required him to pass this mob which had become dangerous. In short his employment required him to pass a dangerous spot or place and in passing such a place he received injury. That being so it appears to me that it can be said in truth and in fact that the accident arose out of his employment. The view of the learned Commissioner, therefore, was right.
18. The appeal fails and is dismissed with costs, the hearing-fee being assessed at four gold mohurs.
G.N. Das, J.
19. I agree.