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Naima Bibi Vs. Lodhne Colliery Co. (1920) Limited - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1977)IILLJ69Cal
AppellantNaima Bibi
RespondentLodhne Colliery Co. (1920) Limited
Cases ReferredMucknnon Mackenzte & Co. P. Ltd. v. Ibrahim Mohammad
Excerpt:
- .....as follows:as a rule the employment of a work, man does not commence until he has readied the place of employment and does not continue when he was left the place of employment, the journey to and from the place of employment being excluded it is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area in which the workman passes and repasses in going to and in leaving the actual place of work. there may be soma reasonable extension in both time and place and a work-man may be regarded as in sourse of his employment even though he had not reached or had left his employer's premises. the facts and circumstances of each case will have to be examined very carefully in order to de ermine whether the accident.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the wife of the deceased workman against the judgment sad order pined by the Commissioner, Workmen's Compensation, on April 2l, 1972. By that order, it was held that the accident in which the workman met his death by reason of the assault by some unknewa assailants, did not arise oat of his employment though It tool place is course of such employment. The application for compensation was accordingly dismissed.

2. The facts, as found by the learned Commissioner, are that on September 1, 1969 as the workman came to the surface on a lift of the colliery on completion of hit duty, and was going home he was assaulted by some unknown persons And as a result died on the spot. It has been also found that the accident took place within the colliery, i.e., the premises of the employer. As, however, It was held, the accident did not arise cut of the employment of the Workman, the claim was not entertained. The propriety of the decision is the subject. matter of the appeal.

3. Learned counsels appearing for the Parties have referred to sent decision is support of their respective contentions which we that new consider.

4. In Gouri Kinkar v. Radha Kissen Cotton Mills A.I.R. 1933 Cal. 220, Rankin C.J. speaking for the Division Bench, cited and followed the following proposition of law laid down by Lord Shaw in Simpson v. Sinclair [1917] A.C. 127.

The expression 'arising out of the employment' is not confined to the mere nature of the employment. the expression applies to the employment as such to its nature. its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so Injured or killed. the broad words of the statute 'arising out of the employment' apply, if the peril which he encountered was not an added peril produced by the workmen himself then a case for compensation under the statute appears to arise.

Lord Sumner in Laneashirs and Yorkshire Railway v. Highly [1917] A.C. 352 observed.

there is one test which is always at any rate applicable.... It is this: Was it part of the Injured person employment to hazard, to suffer, or to do that which caused his Injury? If yes, the accident arose out of his employment if may, it did not, because what it was not part of the employment to hazard to suffer, to do cannot well be the cause or an accident arising out of employment.

5. In A.A. Thaver Bros v. Muthu A.I.R. 1933 Rangoon 208, It was held following above principles in a case when the deceased a porter, was on his way back to his wharf where his day's employment would and, in a recognised way for port en to travel without any added risk, the accident caused by capsize of the sampan whereby the workman was drowned and met his death, was to be regarded as one arising out of as well as in coarse of his employment. In another decision of the Special Bench of the same High Court in Ma Hmoves Yin v. Burma Oil Co. Ltd. A.I.R. 1935 Rangoon 173, Page, C.I., held, other Judges concurring, that where a person with permission lived at some distance from the place of work, and in the course of proceeding in a reasonable time and in a reasonable manner from the place where he resided to the place where he worked he met with a fatal accident then that fatal accident would be held to arise out of and in the course of his employment.

6. in Central Glass Industries Ltd. v. Abdul Hussain A.I.R. 1948 Cal. 12, another Division Bench of this Court observed:.Workman who is injured in the course of his employment would be entitled to compensation only if his employment had given rise to the circumstance of injury by accident, and in testing the case from that point of view the word 'employment' is not to be defined in a narrow manner by reference only to the duties of the workman bat the character, conditions, incidents and special risk involved would have to be taken into consideration.

In Bhaguhai v. General Manager Central Railway : AIR1955Bom105 , Chagla, C.J. laid down the following proposition

There must be a casual connection between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have clearly laid down that if the employee in course of his employment has to be In particular place axid by reason of his being in that particular place he has to face a peril and the accident is caused by region of that peril which he has to face, then a causal connection is established between the accident and the employment, it is now well-settled fact that the employee shares that peril with other members of the publics is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him. The peril must be incidental to his employment. It is also clear that he must not by his own act add to the peril of extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then If the accident arises out of such peril, a cassal connection is established between the employment and the accident.

7. In this case, the employee in the course of his employment found himself In a spot where he was assaulted and scabbed to death. He was in the place where he was murdered by reason of his employment. The Court observed

He would have been safely in his bed bat for the fact that he had to join duty, and he had to pass this spot in order to join hit duty. There, fore, the connection between the employment and the accident is established. There is no evidence in this case that the employee is any way added to the peril. There is no evidence that he was stabbed because the assailant waited to stab him and nobody else.

In Saurashtra Salt Manufacture Co. v. Bai Velu Raja and Ors. : (1958)IILLJ249SC , the Court observed as follows:

As a rule the employment of a work, man does not commence until he has readied the place of employment and does not continue when he was left the place of employment, the journey to and from the place of employment being excluded it is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area in which the workman passes and repasses in going to and in leaving the actual place of work. There may be soma reasonable extension in both time and place and a work-man may be regarded as in sourse of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to de ermine whether the accident arose out of and in course of the employment of the workman, keeping in view at all times the theory of national extension.

8. In General Manager B.E.S.T. under-taking v. Mrs. Agnes : (1963)IILLJ615SC . the above principle of notional extended of employment was extended to cases where the employer offered the facility of out service to their drivers for them to come to their depots and going back to their homes, as employees as of right and in interest of efficiency of service. Accordingly it was held by a majority judgment that when a driver when going home from the depot of coming to the depot uses the bus provided as a means of transport any accident is such bus that happens to him is an accident in course of his employment.

9. the ratio of the decisions eited above appear to be as follows:

(1) The expression 'arising out of employment applies to the nature, conditions. obligations, incidents and special risks of the employ meat and not merely to the nature of employment.

(ii) As a rule the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the employment.

(iii) As a rule journey to and from the place of employment is not included within expression in the coarse of employment.

(iv) The aforeraid two proportions are subject to the theory of notional extension of employer's premises so as to Include the area which the workman passes and repasses in going to and in leaving the actual place of work. Where may be some reasonable extension in both time and a workman may be regarded as in course of his employment even though he had not reached or had left his employer's premises.

(v) There must be a casual connection between the accident and the employment and such cause mast be proximate and not remote cause If the employee in course of his employment has to be is particular place and by reason of his being in particular place, he has to face a peril and a eldest is caused by reason of that peril, an4 that such peril is not added or extended be him, a causal connection is established between the a accident and the employment.

(vi) The facts and circumstances of each cats is no ha examined to determine if the accident arose in coarse and out of employment of the workman is the light at the above propositions of notional extension of the time and place of employment.

10. Coming to the facts of the case it appears the deceased workman was assaulted inside the celliery as he came out to the surface and was going home. There is no dispute the workman had to pass and repast by the area where ha was assaulted in going to the pithead and in leaning she same The workman, on the basic of proportions cited must be held to be within his employment when he van passing through the said area and met his death by assault by unknown people. But for his employment he would not have been at the spot where the accident happened and at such it must be his that there was a casual and proximate connection between the accident and the employment. There is no evidence to indicate that the unfortunate workman by any action on his part added to the peril or extended the pent. In this state of affairs it is held that the personal injury that was caused to the workman by an accident arose out of and in course of his employment under the respondent No 1 Which became liable to pay compensation in accordance with the provisions of the Act.

11. The learned Commissioner in respect of issue No. 2 has hold that the applicant was the widow of the deceased and was to be presumed to be dependent on the deceased and the relevant issue No. 2 was accordingly decided in favour of the applicant. The learned Commissioner has further found that the accident happened within the very premises of the employer who must be presumed to have knowledge of the accident. The issue No. 3 on service of notice of the accident was also decided in favour of the applicant. These findings are affirmed by us. On the issue No. 1 a point was raised by Mr. Ganguli, learned Counsel for the respondents employer contending that the onus of proof in respect of the death of the workman within the premises was not duly discharged by the applicant. In the written statement death of the workman was admitted, bat it was suggested that death was due to inter union rivalry and real facto might be known from records of Jamuria Police Station. No attempt was made by the employer to produce relevant records to prove hi specific defence and on the other hand the compounded of its dispensary was produced who was not the competent person to state in evidence about the relevant tact. On the question of burden of proof, in oooo Mucknnon Mackenzte & Co. P. Ltd. v. Ibrahim Mohammad : (1970)ILLJ16SC , the Court observed:

In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in course of employment. But this does not mean that a workman (applicant ?) who comes to Court for relief must necessarily prove it by direct evidence. Although the onus of providing that the injury by accident arose both out of and in coarse of employment rests upon the applicant these essentials may be inferred when the facts proved Justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, ha may draw an inference from the proved facts so long as it is a legitimate inference. It is of coarse impossible to lay dawn any rule as to the degree of proof which is sufficient to Justify an inference being drawn, bat the evidence must be such as would induce reasonable man to draw it.

12. In the case before us, there is a direct evidence of a fellow workman. Applicant's witness No. 2, who testified having seen the assault on the deceased workman, which led to his death, within the premises of the employer. There is no rebuttal evidence on the pari of the employer to disprove the applicant case. The learned Commissioner was accordingly justified in holding that the defeated workman was killed by some unidstifled persons in the premises of the opposite party when the workman was going away after completion of duty.

13. The finding of the learned Commissioner that the accident did not arise out of the employment of the deceased workman, in view of what is stated above is set aside. We also set aside the order dismissing the applicants application for compensation. In the circumstance we sent the case back on remand to the learned Commissioner for determining So accordance with law the amount of compensation payable to the applicant on account of the death of the workman which, as we have held, arise out of and in course of his employment under the respondent there will be no order for costs in this appeal.

14. Let the records be rent downat once

Sankar Prasad Mitra, C.J.

I agree.


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