1. This is an appeal preferred by a widow whose claim to compensation for the death of her husband was dismissed by the Comr. for Workmen's Compensation.
2. The workman was one B.K. Seth by name & at the time of his death he was employed as an engine driver in the East India Rly. On 2nd March 1947, he finished his duty at Chitpore Locomotive Shed at 5.45 A.M. At about 6.15 A.M. he was knocked down by a train at Ultadanga Rly. Station & killed. His widow Ranibala Seth claimed compensation & alleged that the average wages of the workman was between Rs. 100/- & Rs. 200/- per month.
3. The learned Comr. came to the conclusion that the accident did not arise out of & in the course of the employment of the workman. He was actually killed on a rly. platform & in the view of the learned Comr. that was a public place to which the public had access. The risks of that place were not risks of the employment, but were risks to which the general public were exposed & therefore he was of the opinion that death was not due to accident arising out of & in the course of his employment.
4. Mr. Sanyal on behalf of the applt has contended that the workman was admittedly killed on the employers' premises as he was leaving his employment after finishing the day's work. It is contended that as long as he was on the employers' premises he was in the course of his employment & as the accident happened when he was on the rly. platform, which was part of the employers' premises he had not left the sphere of his employment & the accident arose out of & in the course of his employment.
5. The learned Comr. has found that Seth had been allotted a quarter in the rly. colony, but it seems that owing to communal disturbances he had moved his family to Ranaghat for greater safety. Whether on the day in question Seth after finishing his work was going back to his quarters or going to Ranaghat is difficult to say. He was undoubtedly on that morning leaving the sphere of his employment & the only question which we have to decide is whether or not he had reached a point outside the sphere of employment or whether he was still within the sphere or ambit of his employment when he was knocked dawn & killed.
6. The learned Comr. has found that there were four ways of reaching the public road from this locomotive shed. Two of the ways the Comr. has found were impracticable in March 1947 because of communal trouble. The ways led through a Moslem area & the learned Comr. agrees that it would be wholly unsafe for any Hindu to traverse those routes particularly at dawn or thereabouts. The other two routes were: one right across the rly. track & the other a route which led eventually to the rly. station & then to the public road.
7. Obviously no rly. would tolerate their workmen taking a route across a number of rly. tracks as such would be far too dangerous. The learned Comr. does not really suggest that this is a route which the workman could have rightly taken. The workman took the route which eventually led through the rly. station & the finding of the learned Comr. is as follows :
''Seth (the workman) was following a route usually taken by the workmen, a route which was practically connived at by the employers. While passing along this route he did not share any danger in common with the public. His employment took him there. Seth in my opinion was in course of his employment till he reached the platform or the public road.'
8. It is clear from this finding that Seth was using the only practicable way of leaving the locomotive shed & the learned Comr. was of opinion that had the accident happened before he reached the rly. platform, it would undoubtedly have been an accident arising out of & in the course of his employment.
9. The accident in fact happened in the platform area. The learned Comr. deals with the facts in these words :
'Motilal O. P. W. 2 says that Seth was knocked down at a place to the south of the northern stairs emerging out of the platform to the public road. Now this is the platform area in which the public had the right of access & in fact had access & the risk at that spot was shared by Seth in common with the members of the public.'
10. From this finding, it seems clear that the accident occurred on rly. premises because it is difficult to understand how he could have been knocked down if he had reached the public road in safety. In fact the learned Comr. expressly finds that it happened in what he describes as the platform area. From this finding it seems quite clear that Seth had not left the premises of the East India Rly. when the accident actually occurred.
11. The learned Comr. however appears to have thought that though Seth was still on the premises of the East India Rly. he was in what was virtually a public place & that the risks of the place were risks to which all members of the public using the platform were exposed to. The risks which Seth was exposed to were no greater on the platform than the risks to which the general public were exposed. The learned Comr. refers to an observation of Lord Macmillan who delivered the judgment of the House of Lords in the case of McCullum v. Northumbrain Shipping Co. Ltd., (1932) 147 L. T. 361 : (101 L. J. K. B. 664). Lord Macmillan observed:
'This at least, however, can be said, that the accident In order to give rise to a claim for compensation must have some relation to the workman's employment & must be due to a risk incidental to that employment as distd. from a risk to which all members of the public are alike exposed.'
12. It is true that Lord Macmillan made the observation but that observation must be read in the light of the facts of McCullum's case (1932-147 L. T. 361: 101 L. J. K. B. 664). In McCullum v. Northumbrian Shipping Company Ltd. (1932. 147 L. T. 361 (101 L. T. K. B. 664) the deceased workman signed articles for a voyage in a foreign-going ship then berthed in his home port. Under the articles he agreed to serve as boatswain, & there was an added term that he should act as watchman while the ship was in port with extra wages. He went home each day, & on Saturday evening, 4-10-1930 he was returning to the ship for his duty as watchman, & at the side of the-docks stopped for a short time at an inn, the last place in which he was seen alive. The night was very wet and half a gale was blowing. Three days afterwards his body was found in the water about a thousand yards from the ship, the spot being one which was on his way from the inn to the ship. There was no question of suicide or violence. On a claim for compensation under the Work-men's Compensation Act, 1925, by those dependent on his earnings, the county Ct. Judge found that it was the practice for seamen who signed on at a home port to sleep at home & to go to & from the ship while it was being got ready for sea, that practice being recognised by ship-owners. He, therefore, decided that the deceased workman must be treated as if he had been an ordinary workman going to his day's work when he went to the dock premises & therefore his position was not that of a seaman who had gone ashore for his own purposes. The case consequently must be treated as falling within the principle which prevailed in John Stewart and Son Ltd. v. Longhurst, (1917) A. C. 249: (86 L. J. K. B. 729) rather than within that in Davidson and Co. v. M' Robbor Officer, (1918) A. C. 304: (87 L. J. P. C. 58). And applying the principles laid down with regard to unexplained accidents he held that the accidents arose out of & in the course of the employment. The House of Lords held that the seaman, who, on his way back to his ship, had left the public highway, with its risks common to all wayfarers, & had entered the private premises of the harbour in which his ship lay, with its special risks to which only those who had business at the harbour were exposed, came within the protection of the Workmen's Compensation Act, 1925, for if he sustained an accident while using that access he sustained it by reason of risks incidental to his employment which he would not have encountered but for his employment.
13. In earlier cases the House of Lords had taken the view that a seaman returning to his ship could not be said to have entered the sphere of his employment until he had, for example, reached the gangway of his ship. In the case of Kitchenham v. Owners of S.S. Johannesburg, (1911) A. C. 417: (80 L. J. K. B. 1102). The House of Lords held that where a sailor having been on shore with leave fell into the water & was drowned whilst returning to the ship, a claim for compensation failed as there was no evidence that the seaman had or had not reached the gangway when he fell. There can be no doubt that McCullum's case (1932-147 L. T. 361: 101 L. J. K. B. 664) differs very greatly from Kitchenham's case (1911 A. C. 417: 80 L. J. K. B. 1102).
14. Dealing with the law applicable Lord Macmillan in MCcullum's case (1932-147 L. T. 361 101 L. J. K. B. 664) at p. 366 observed:
'It has been recognised time & again that the sphere of a workman's employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer's premises or which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his master's business while he is using that access. Take the analogy of a domestic servant, which is peculiarly in point, for a domestic servant, like a seaman, 'lives in', & the scene of a domestic servant's employment is the master's house just as the ship is the scene of the seaman's employment. I imagine no one would doubt that a maid servant returning home from her night out & meeting with an accident in the private avenue of her master's house, though at a point a quarter of a mile from the house, would be entitled to compensation. .....
The seaman who on his way back to his ship has left the public highway with its risks common to all wayfarers & has entered the private premises of the harbour in which his ship lies with its special risks, to which only those who have business at the harbour are exposed, seems to me to have come within the protection of the Act, for if he sustains an accident while using this access he sustains it by reason of risks incidental to his employment, which he would not have encountered but for his employment.'
15. It appears to me that on the findings of the learned Comr. there can be no doubt that the only practicable means which the workman had to leave the place of his employment was this route which led through Ultadanga Rly. Station. Once he had passed through the station he would be on a public road & therefore in a public place. The learned Comr. appears to have thought that when he reached the platform the workman had reached a public place. But it appears to me that there is no justification for that view. A railway station just as a dock or harbour is private property & members of the general public have no right to use that property. They use it by permission. For example, in a busy harbour thousands of people go back & fore to the wharves, to the ships lying at the wharves, & to the warehouses lying along the dock side. It is very much like a public place & is resorted to by all & sundry who have business connected with the dock. It seems to me that a Rly. station is much the same sort of place. It is resorted to by the public who have business with the rly. or who are travelling or are connected with persons who are travelling. A member of the public has no right to use a rly. platform for an evening walk. It is private property just as a harbour is a private property. But it is private property which members of the public in large numbers use. But it is user connected with travelling or business with the rly. not user as of right. It seems to me that the position of a rly. platform is precisely similar to the dockside or a harbour. There are special risks attached to a rly. station & a rly. platform--the risk of slipping & falling under a train or the risk when reaching a platform of being knocked down by an incoming train. These are risks which everybody using the platform are exposed to. But they cannot be described as risks which the general public are exposed to. They are the same sort of risks as the public legitimately using a harbour are exposed to. They are risks special to that particular area.
16. We have to ask ourselves, why was Seth on this particular morning exposed to dangers from passing trains Was he exposed to that danger merely as a member of the public, or was he exposed to those dangers because he was still within the sphere of his employment & had not left his employers' premises? It seems to me that Seth was killed because as an employee of the East India Rly. he had to use a certain track & the platform of the rly. station to reach the public road to get to his quarters or to get away from the scene of his work. The risk was a special risk to which only those who had business on the platform were exposed to just as the risks in McCullum's case, (1932-147 L.T. 361:101 L.J. K. B. 664), were special risks to which only who those had business at the harbour were exposed. On this particular morning Seth had to Cross this platform because of his employment & he had to cross the platform in order to get away from the scene of his employment. He was still on his employers' premises & as Lord Macmillan observed, if in going to or coming from his work he has to use an access which is part of his employer's premises, he is held to be on his master's business while he is using that access. Up to the moment Seth was killed he was traversing a way across his employers' premises, the only practicable way to get away from his employers' premises. He was knocked down & killed & it appears to me that it must be held that the accident arose out of & in the course of his employment. The case cannot be distd. from McCullum's case, (1932-147 L. T. 361 : 101 L. J. K. B. 664), & in my view that latter case should be folld.
17. It must be held therefore that the learned Comr. was wrong in dismissing this claim. The learned Comr. held that the average wages of the deceased workman were between Rs. 100/- & Rs. 200/- per month & this seems to have been agreed. That being so, the amount of compensation is fixed by Schedule 4 to the Act & the amount is Rs. 3,500/-.
18. Once it is held that the accident arose out of & in the course of the employment it follows that the widow who admittedly is a dependent, is entitled to compensation & the amount is, as I have said, a fixed amount of Rs. 3,500/-.
19. Before concluding I should state that learn-ed advocate for the resps. at one time suggested that the learned Comr. should have held that the deceased met his death owing to his having exposed himself to some added peril or that he was killed as the result of some misconduct. I should observe that these points are not taken in the written statement & no evidence at all was led to show that Seth had been guilty of anything improper up to the time when he met his death.
20. For the reasons which I have given, I should allow this appeal, set aside the order of the Commr. for Workmen's Compensation & award the applt., the widow of the deceased man, a sum of Rs. 3,500/- as compensation under the Workmen's Compensation Act.
21. The applt. is entitled to the costs of the proceedings in this Ct. & in the Ct. below. The hearing-fee in this Ct. is assessed at four gold mohurs.
22. I agree.