Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9084 OF 2012
(@ SLP (C) NO. 16063 OF 2007)
Mst. Param Pal Singh Through Father ….Appellant
VERSUS
M/s National Insurance Co. & Anr. .…Respondents
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the judgment of the High Court of Delhi
passed in FAO No.184/2005 dated 23.05.2007.
The said appeal before the
High Court arose out of an award passed by the Workmen’s Compensation
Commissioner in its order dated 29.12.2004 in WCD/113/NWD/02.
The
Workmen’s Compensation Commissioner determined the compensation payable
to the appellant herein in a sum of Rs.2,20,280/- along with another sum
of Rs.2500/- as funeral charges under Section 4(4) of the Workmen’s
Compensation Act.
A separate show-cause-notice was issued for payment of
interest and penalty. The respondent herein preferred the abovesaid
appeal in FAO No.184/2005 in which the High Court passed the impugned
order setting aside the order passed by the Commissioner. It is in the
abovesaid background the appellant-claimant has come forward with this
appeal.
3. At the very outset, it is required to be stated that the appellant
claimed himself to be the adopted son of the deceased Jeet Singh @ Ajit
Singh. According to the claimant the deceased Jeet Singh @ Ajit Singh was
employed as Truck Driver by the second respondent herein to drive truck
bearing No.DL-IG-8255. It is stated that in July 2002 the deceased Jeet
Singh @ Ajit Singh was assigned the duty of driving the abovesaid truck
in connection with the trade and business of the second respondent from
Delhi to Nimiaghat, that on 17.07.2002 when the vehicle reached near
about the destination Nimiaghat, District Giridih, the deceased suffered
a health set-back and therefore he parked the vehicle on the road side of
a nearby hotel. It is further stated that immediately after parking the
vehicle he fainted and the persons nearby took him to the hospital where
the doctors declared that he was brought dead. An FIR was stated to have
been lodged with the police and thereafter the postmortem was conducted
at Civil Hospital, District Giridih. The said truck was insured with the
first respondent herein. In the abovesaid background the appellant
preferred the application before the Commissioner of Workmen’s
Compensation, Delhi contending that the death of the deceased was in the
course of his employment with the trade and business of the second
respondent and that his death was due to stress and strain while driving
the said truck continuously over a period of time. It was further claimed
that at the time of his death the deceased was drawing wages at the rate
of Rs.3091/- per month apart from a sum of RS.50/- per day as allowances
and in all a sum of Rs.4591/- per month. The age of the deceased was
stated to be 45 years at the time of his death. Appellant also claimed
interest @ 12% p.a from the date of accident till realization apart from
claiming penalty.
4. The claim of the appellant was resisted by the first respondent
substantively on two grounds. In the first place it was contended that
the appellant had no locus to file the claim petition inasmuch as he was
not a dependant. It was then contended that
the death of the deceased was
due to natural causes and that there was no CAUSAL CONNECTION between the
death of the deceased and that of his employment. The specific stand of
the first respondent was that the deceased was an unmarried person, that
on that day he was not driving the vehicle and that one Bhure Singh s/o
Dharam Pal Singh was driving the truck in question and that no accident
took place. The jurisdiction of the Commissioner was also questioned.
5. Before the Commissioner the biological father of the appellant examined
himself as a witness who was cross-examined on behalf of the respondents.
One Anil Sharma s/o the second respondent gave evidence on his side who
was cross-examined by the counsel for the appellant. On behalf of the
first respondent one A.B. Dutta was examined. On behalf of the appellant
Exhibits AW1/1 to AW1/7 and AW1/R were marked. AW1/1 is the copy of FIR,
AW1/2 is the copy of postmortem report, AW1/3 is the copy of insurance
policy, AW1/4 is the copy of registration certificate, AW1/5 and AW1/6
are copies of ration card, AW1/7 is the copy of affidavit of Sh. Santokh
Singh regarding the age and name of the deceased and AW1/R is the
Adoption Deed.
6. The Commissioner repelled both the contentions of the respondents,
namely, about the locus of the appellant as well as the CAUSAL CONNECTION
of the death of the deceased with that of his employment and awarded the
compensation as mentioned above. The learned Judge, however, held that
the death of the deceased was due to natural causes and it had no CAUSAL
CONNECTION with his employment and also held that the adoption of the
appellant was not proved.
7. We heard Mr. R.K. Nain, learned counsel for the appellant and Shri M.K.
Dua, learned counsel for the respondent(s). Learned counsel for the
appellant strenuously contended that the impugned judgment of the High
Court is liable to be set aside on both the grounds. According to learned
counsel when once the employment of the deceased with the second
respondent was proved there was every justification for the Commissioner
in having held that the death of the deceased was in the course of his
employment in an accident arising out of such employment. It was then
contended that the learned Judge failed to consider the evidence which
was placed before the Court relating to valid adoption of the appellant
by the deceased in a ceremony held for that purpose where the biological
father gave appellant in adoption when he was three years old which was
accepted by the deceased to be his adopted son. The learned counsel
relied upon the decisions in Lakshman Singh Kothari V. Smt. Rup Kanwar -
AIR 1961 SC 1378, Messrs Mackinnon Mackenzie & Co. Pvt. Ltd. V. Ritta
Farnandes - 1969 A.C.J. 419, Mackinnon Mackenzie & Co. Pvt. Ltd. V.
Ibrahim Mahmmod Issak 1969 A.C.J. 422, State of Rajasthan V. Ram Prasad
and another - 2001 A.C.J. 647, Anand Bihari and others V. Rajasthan State
Road Trans. Corpn. and another - 1991 A.C.J. 848, Lalo Devi V.
Superintendent of Mines -1988 ACJ 886 and Shakuntala Chandrakant Shreshti
V. Prabhakar Maruti Garvali & another - IV (2006) ACC 769 (SC) in support
of his submission.
8. Though notice was duly served on the second respondent, he did not
evince any interest in contesting this appeal. Learned counsel for the
first respondent in his submissions contended that the judgment of the
High Court does not call for any interference. According to learned
counsel since there was no accident and the death of the deceased was due
to natural causes, no compensation was payable under the Workmen’s
Compensation Act. Learned counsel also contended that the adoption of the
appellant by the deceased was not proved in the manner known to law.
9. Having heard learned counsel for the respective parties and having
perused the judgment of the learned Judge as well as that of the
Workmen’s Compensation Commissioner and all other material papers placed
before us, we find that the judgment of the learned Judge cannot be
sustained.
10. In the first instance we wish to deal with the issue relating to
validity of the adoption of the appellant since if only his adoption is
held to be valid there is scope for examining his right to claim
compensation over the death of the deceased as his adopted son. In Hindu
Law in the celebrated decision of this Court reported in Lakshman Singh
Kothari (supra), the legal requirement for a valid adoption has been
succinctly stated in paragraph 10 which reads as under:
“10. The law may be briefly stated thus: Under the Hindu law, whether
among the regenerate caste or among Sudras, there cannot be a valid
adoption unless the adoptive boy is transferred from one family to
another and that can be done only by the ceremony of giving and
taking. The object of the corporeal giving and receiving in adoption
is obviously to secure due publicity. To achieve this object it is
essential to have a formal ceremony. No particular form is prescribed
for the ceremony, but the law requires that the natural parent shall
hand over the adoptive boy and the adoptive parent shall receive him.
The nature of the ceremony may vary depending upon the circumstances
of each case. But a ceremony there shall be, and giving and taking
shall be part of it. The exigencies of the situation arising out of
diverse circumstances necessitated the introduction of the doctrine of
delegation; and, therefore, the parents, after exercising their
volition to give and take the boy in adoption, may both or either of
them delegate the physical act of handing over the boy or receiving
him, as the case may be, to a third party.”
11. The said legal position has been consistently followed by this Court
which can be mentioned by referring to a recent decision of this Court
reported in M. Gurudas and others V. Rasaranjan and others - 2006 (8) SCC
367. Paragraphs 26 and 27 are relevant for our purpose which read as
under:
“26. To prove valid adoption, it would be necessary to bring on record
that there had been an actual giving and taking ceremony. Performance
of “datta homam” was imperative, subject to just exceptions. Above
all, as noticed hereinbefore, the question would arise as to whether
adoption of a daughter was permissible in law.
27. In Mulla's Principles of Hindu Law, 17th Edn., p. 710, it is
stated:
“488. Ceremonies relating to adoption.—(1) The ceremonies relating
to an adoption are—
(a) the physical act of giving and receiving, with intent to
transfer the boy from one family into another;
(b) the datta homam, that is, oblations of clarified butter to
fire; and
(c) other minor ceremonies, such as putresti jag (sacrifice for
male issue).
(2) The physical act of giving and receiving is essential to the
validity of an adoption.
As to datta homam it is not settled whether its performance is
essential to the validity of an adoption in every case.
As to the other ceremonies, their performance is not necessary
to the validity of an adoption.
(3) No religious ceremonies, not even datta homam, are necessary
in the case of shudras. Nor are religious ceremonies necessary amongst
Jains or in the Punjab.”
12. In this context, it will be worthwhile to note the requirement of
registration of an Adoption Deed. Section 17 of the Registration Act
specifically refers to the documents of which registration is compulsory.
The deed of adoption is not one of the documents mentioned in sub-section
1 of Section 17 which mandatorily required registration. Sub-section 3 of
Section 17 only refers to the mandatory requirement of registration of an
authorization that may be given for adopting a son executed after
01.01.1872 if such authorization was not conferred by a Will. Dealing
with the said provision relating to authorization, it has been held in
the decision reported in Vishvanath Ramji Karale V. Rahibai Ramji Karale
and others - AIR 1931 Bombay 105 by a deed of adoption as distinguished
from authority to adopt does not require registration.
13. Keeping the above statement of law in mind as regards the procedure to
be followed for a valid adoption and the statutory stipulation that an
adoption deed does not require registration, the claim of the appellant
as the adopted son of the deceased requires to be considered. We find
from the record that the appellant has produced Exhibit AW1/R which is
the copy of the Adoption Deed. To appreciate the claim of the appellant
in the proper perspective the contents of the said document can be
usefully referred to which reads as under:
“TRUE TRANSLATION IN ENGLISH
Stamp
ADOPTION DEED
1. Ajit Singh son of Surta Singh son of Deva Singh, am residing at
village Dhariwal Kalan, Tehsil & Distt-Gurdaspur, Punjab
(hereinafter called the first party). That I am unmarried so I have
no children. Keeping in mind that in absence of the children one
becomes without any care. Hence, for the purpose of proper
maintenance a son is necessary. So, I have thought it fit to take
Master Parampal son of Sh. Santokh Singh and Smt. Nirmal Kaur
(hereinafter called the second party) resident of village Dhariwal
Kalan in adoption and they have decided to give. Master Parampal’s
date of birth is 8-12-1996. His bringing up is being done by me and
I am planning to send him to school. For the interest of his health
and medication I myself do care. Parampal Singh is a very obedient
boy and he always remains obedient to me and show me utter respect.
I always have a great affection for him. I want that whatever I
leave behind be owned by Parampal Singh. I, in the presence of all
respected persons and Panchayat, adopt Master Parampal Singh as my
son and in the ceremony goods and sweets are distributed for the
happiness of one and all.
Adoption Deed is reduced in writing for the purpose of proof.
First party Second party
Ajit Singh LTI Sd/-
Sd/- Gurbax Singh Nirmal Kaur
Sarpanch 15/2/1999 Sd/-
Gram Panchayat Seal & Stamp
Dhariwal Kalan
Witnesses:- Witnesses:-
Sd/- Sd/-
Nishan Singh Tarsem Singh
S/o-Dayal Singh S/o-Bawa Singh
Vill- Chhina Retwala R/o-Dhariwalkalan
15/2/1999 Sd/-
Karnail Singh
Nambardar
Vill-Kallu Sohal”
14. The biological father of the appellant filed his proof affidavit on
behalf of the appellant and offered himself for cross-examination. In the
said affidavit it was specifically mentioned that the appellant was the
dependent of the deceased workman as his adopted son. In the course of
the cross-examination of the appellant by the respondents, the witness
produced the original Adoption Deed along with the photocopy and after
verifying with the original the photocopy was marked as Exhibit AW1/R.
The relevant part of cross-examination as regards the adoption of the
appellant can be extracted which are as under:
“……It is correct that Ajit Singh is my elder brother. At the time of
writing of this Adoption Deed there were 15-20 persons present. Those
who were present were known to me. This Adoption Deed was written by
“SARPANCH OF THE VILLAGE” Shri Gurbux Singh. At the time of writing of
this ‘Adoption Deed’ no mantra ceremony was done. It is wrong to say
that at the time of writing of this ‘Adoption Deed’ Ajit Singh was not
present. ‘Adoption Deed’ exbt. AW1/R at point ‘A’ my signatures are
there. At point ‘B’ & ‘C’ there are signatures of witnesses. At point
‘D’ there was signature of SARPANCH. At point ‘E’ there are signatures
of another witness. Signatures are of only five persons. Apart from 15-
20 people there were some women as well. It is wrong to say that this
‘Adoption Deed’ has been written afterwards. At the time of writing of
this ‘Adoption Deed’ Parampal was 3 years old. It is wrong to say that
I am deposing falsely.”
15. Conspectus consideration of the deed of adoption and the oral evidence
led on behalf of the appellant, we find that there was a simple ceremony
though not a mantra ceremony held in which the deceased participated
wherein it was expressed that the deceased being a bachelor thought it
fit to take the appellant in adoption for which the biological parents of
the appellant were also willing to give him in adoption. In the Adoption
Deed it was specifically mentioned that the process of adoption was
carried out in the presence of respected persons of the Panchayat in a
ceremony where goods and sweets were distributed in commemoration of the
function of adoption. It has come in evidence that the Adoption Deed was
written by Gurbux Singh on 15.02.1999 who was the Sarpanch of the village
at that point of time. The left thumb impression of the deceased was
found affixed in the Adoption Deed which was signed both by the
biological parents apart from three witnesses, namely, Nishan Singh s/o
Dayal Singh of village Chhina Retwala, Tarsem Singh s/o Bawa Singh r/o
Dhariwalkalan and Karnail Singh Nambardar of village Kallu Soha. It was
stated that about 15 to 20 persons apart from women folk were present at
the time when the adoption ceremony was held. The suggestion, that the
deed was written later on, was duly denied by the witnesses. It was also
stated that the appellant was just three years old at the time when the
adoption took place. Further Exhibits AW1/5 and AW1/6 are the copies of
ration cards in which it is mentioned that the father of the appellant is
Ajit Singh.
16. All the above factors which are born out by records as well as in the
oral version of the witnesses, examined on behalf of the appellant, in
our considered opinion conclusively proved that the appellant was the
adopted son of the deceased having been adopted as early as on 15.02.1999
i.e. long before the death of the deceased, namely, 17.07.2002.
Unfortunately, the learned Judge in the impugned judgment has completely
misled himself by rejecting the claim of adoption by holding that the
document was not registered with the Tahsildar, that no ceremony was
held, that the adoptive father was not present, that there was no giving
and taking of the adopted son and, therefore, the adoption of the
appellant by the deceased not proved. On the contrary, as stated above,
we find that everyone of the prescription required for a valid adoption
were very much present in the form of both oral and documentary evidence
on record and consequently the conclusion of the learned Judge in having
held that the appellant was not the adopted son of the deceased cannot be
sustained and the same is set aside. Having reached the above conclusion,
we proceed to deal with the claim of the appellant on merits.
17. On merits to retrace the facts, the deceased Jeet Singh @ Ajit Singh
was employed as truck driver by the second respondent. His services were
utilized for driving the truck belonging to the second respondent bearing
No.DL-IG-8255. The deceased was driving the said truck in connection with
the commercial transport operation of the second respondent from Delhi to
Nimiaghat on 17.07.2002. According to the claimant when the truck reached
the near about of Nimiaghat, District Giridih, the deceased felt giddy
and, therefore, parked the vehicle on the road side near a hotel and soon
thereafter he stated to have fainted. The deceased was removed to a
nearby hospital where the doctors declared him brought dead. An FIR was
lodged with the Police Station, Nimiaghat in FIR No.7/2002 dated
18.07.2002. The postmortem was stated to have been conducted on
19.07.2002 and thereafter the dead body was taken to his native place for
performing last rites. The claimant in his application before the
Commissioner submitted that the death of the deceased was due to the
strain and stress of continuous driving in the course of his employment
with the second respondent, that the vehicle which he was driving bearing
No.DL-IG-8255 was insured with the first respondent vide covering note
No.0968499 for the period of 14.02.2002 to 13.02.2003 and that an
additional premium was also paid for coverage of compensation payable
under the Workmen’s Compensation Act. The claimant, as an adopted son of
the deceased, claimed compensation as his dependant.
18. As far as the merits of the claim was concerned, the stand of the first
respondent in its written statement was that the deceased was not in the
employment of the second respondent, that no accident took place in the
course of the employment of the deceased with the second respondent, that
the deceased was not holding a valid license at the time of alleged
accident, that the deceased was under the influence of alcohol or drug at
the time of alleged accident and, therefore, no compensation was payable
and the first respondent was not liable to pay any compensation. The
second respondent also took the stand in his written statement that the
deceased was not in his employment and that he was not in his
professional visit in the truck bearing No.DL-IG-8255 to Nimiaghat. It
was also stated that one Bhure Singh s/o Dharam Pal Singh was driving the
said truck and that in all possibilities the said Bhure Singh might have
given lift to the deceased and the deceased might have died due to heavy
dose of drug with tea.
19. On behalf of the first respondent its Divisional Manager filed his
proof affidavit while on behalf of the second respondent one Anil Sharma
was examined. As far as the employment of the deceased was concerned, the
Commissioner has noted that the FIR which was marked as Exhibit AW1/1
disclose that the second driver Bhure Singh himself admitted therein that
the deceased was the senior driver who was driving the vehicle at the
time of his death. As regards the said piece of evidence contained in
AW1/1 nothing was brought out in his evidence either by way of trip sheet
or attendance register or payment of wages register or any other document
to show that the deceased was not in the employment of the second
respondent at any point of time or on the fateful day. The Commissioner
also noted that there was no cross-examination of WW1/A Santokh Singh on
that issue. On the other hand RW.1 Anil Sharma in his cross-examination
admitted that a sum of Rs.10,000/- was given to the family of the
deceased for cremation purposes. Therefore, the issue relating to the
employment of the deceased by the second respondent as found to have been
established before the Commissioner cannot be assailed.
20. Once we cross the said hurdle only other question to be considered is
whether death of the deceased was in an accident arising out of and in
the course of his employment with the second respondent? It is common
ground that the vehicle which was driven by the deceased did not meet
with any road accident on 17.07.2002. As a matter of fact, the deceased
while driving the vehicle from Delhi to Nimiaghat when reached near the
destination, namely, Nimiaghat felt giddy and thereafter stated to have
collapsed as he was found in a faint condition in the vehicle which he
managed to park on the road side.
21. The entitlement to claim compensation is therefore dependent on
fulfillment of the stipulations contained in Section 3(1) of the
Workmen’s Compensation Act, which read as under:
“3. Employer’s liability for compensation.-(1) If personal injury is
caused to an employee 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:
Provided that the employer shall not be so liable –
a) …… …… ……
b) …… …… ……
i) …… …… ……
ii) …… …… ……
iii) …… …… ……”
22. However, there are decisions of the English Court as early as of the
year 1903 onwards stating that unlooked-for mishap or an untoward event
which is not expected or designed should be construed as falling within
the definition of an “accident” and in the event of such “untoward”
“unexpected” event resulted in a personal injury caused to the workman in
the course of his employment in connection with the trade and business of
his employer, the same would be governed by the provisions of Section 3
of the Workmen’s Compensation Act. Such a legal principle evolved from
time immemorial got the seal of approval of this Court and for this
purpose we can refer to the celebrated decision in Ritta Farnandes
(supra). After referring to the decision of House of Lords in Clover
Clayton & Co. V. Hughes reported in 1910 A.C. 242 this Court referred to
the relevant passage in the decision of House of Lords in paragraph 4,
which reads as under:
“4. Even if a workman dies from a pre-existing disease, if the disease
is aggravated or accelerated under the circumstances which can be said
to be accidental, his death results from injury by accident. This was
clearly laid down by the House of Lords in Clover Clayton & Co. v.
Hughes where the deceased, whilest tightening a nut with a spanner,
fell back on his hand and died. A post mortem examination showed that
there was a large aneurism of the aorta, and that death was caused by
a rupture of the aorta. The aneurism was in such an advanced
condition that it might have burst while the man was asleep, and very
slight exertion or strain would have been sufficient to bring about a
rupture. The County Court Judge found that the death was caused by a
strain arising out of the ordinary work of the deceased operating upon
a condition of body which was such as to render the strain fatal, and
held upon the authorities that this was an accident within the meaning
of the Act. His decision was upheld both by the Court of Appeal and
the House of Lords:
“No doubt the ordinary accident,” said Lord Loreburn, L.C. “is
associated with something external: the bursting of a boiler or
an explosion in a mine, for example. But it may be merely from
the man’s own miscalculation, such as tripping and falling. Or
it may be due both to internal and external conditions, as if a
seaman were to faint in the rigging and tumble into the sea. I
think it may also be something going wrong within the human
frame itself, such as straining of muscle or the breaking of a
blood vessel. If that occurred when he was lifting a weight, it
would properly be described as an accident. So, I think,
rupturing an aneurism when tightening a nut with a spanner may
be regarded as an accident.”
With regard to Lord Macnanghten’s definition of an accident being “an
unlooked for mishap or untoward event which is not expected or
designed” it was said that an event was unexpected if it was not
expected by the man who suffered it, even though everyman of
commonsense who knew the circumstances would think it certain to
happen.”
23. In a recent decision of this Court in Shakuntala Chandrakant Shreshti
(supra), the factors to be established to prove that an accident has
taken place have been culled out and stated as under in paragraph 28:
“28. In a case of this nature to prove that accident has taken place,
factors which would have to be established, inter alia, are:
1. stress and strain arising during the course of employment
2. nature of employment
3. injury aggravated due to stress and strain”
24. In Mallikarjuna G. Hiremath V. Branch Manager, Oriental Insurance Co.
Ltd. and another reported in AIR 2009 SC 2019 the principles to attract
Section 3 of the Workmen’s Compensation Act have been stated as under in
paragraph 14:
“14. There are a large number of English and American decisions, some
of which have been taken note of in ESI Corpn’s case (supra) in regard
to essential ingredients for such finding and the tests attracting the
provisions of Section 3 of the Act. The principles are:
1) There must be a casual connection between the injury and the
accident and the accident and the work done in the course of
employment.
2) The onus is upon the applicant to show that it was the work
and the resulting strain which contributed to or aggravated
the injury.
3) If the evidence brought on records establishes a greater
probability which satisfies a reasonable man that the work
contributed to the causing of the personal injury, it would
be enough for the workman to succeed, but the same would
depend upon the fact of each case.”
25. The Madhya Pradesh High Court in Smt. Sundarbai V. The General Manager,
Ordnance Factory, Khamaria, Jabalpur reported in 1976 Lab I.C. 1163 in
paragraph 10 the principles have been culled out as under:
“10. On a review of the authorities, the principles insofar as
relevant for our purposes may be stated as follows:
(A) Accident means an untoward mishap which is not expected or
designed by the workman. “Injury” means physiological injury.
(B) “Accident” and “injury” are distinct in cases where accident is
an event happening externally to a man; e.g. when a workman falls from
a ladder and suffers injury. But accident may be an event happening
internally to a man and in such cases “accident” and “injury”
coincide. Such cases are illustrated by bursting of an aneurism,
failure of heart and the like while the workman is doing his normal
work.
(C) Physiological injury suffered by a workman due mainly to the
progress of disease unconnected with employment, may amount to an
injury arising out of and in the course of employment if the work
which the workman was doing at the time of the occurrence of the
injury contributed to its occurrence.
(D) The connection between the injury and employment may be
furnished by ordinary strain of ordinary work if the strain did in
fact contribute to or accelerate or hasten the injury.
(E) The burden to prove the connection of employment with the injury
is on the applicant, but he is entitled to succeed if on a balance of
probabilities a reasonable man might hold that the more probable
conclusion is that there was a connection.”
26. Again in yet another celebrated decision of this Court in Ibrahim
Mahmmod Issak (supra) this Court has set down the principles applied in
such cases as under in paragraph 5:
“5. To come within the Act the injury by accident must arise both
out of and in the course of employment. The words “in the course of
the employment” mean “in the course of the work which the workman is
employed to do and which is incidental to it.” The words “arising out
of employment” are understood to mean that “during the course of the
employment, injury has resulted from some risk incidental to the
duties of the service, which, unless engaged in the duty owing to the
master, it is reasonable to believe the workman would not otherwise
have suffered.” In other words there must be a casual relationship
between the accident and the employment. The expression “arising out
of employment” is again not confined to the mere nature of the
employment. The expression applies to employment as such to its
nature, its conditions, its obligations and its incidents. If by
reason of any of those factors the workman is brought within the zone
of special danger the injury would be one which arises ‘out of
employment’. To put it differently if the accident had occurred on
account of a risk which is an incident of the employment, the claim
for compensation must succeed, unless of course the workman has
exposed himself to an added peril by his own imprudent act. In
Lancashire and Yorkshire Railway Co. v. Highley, Lord summer laid down
the following test for determining whether an accident “arose out of
the employment.”
(Emphasis added)
27. Applying the various principles laid down in the above decisions to the
facts of this case, we can validly conclude that there was CAUSAL
CONNECTION to the death of the deceased with that of his employment as a
truck driver. We cannot lose sight of the fact that a 45 years old driver
meets with his unexpected death, may be due to heart failure while
driving the vehicle from Delhi to a distant place called Nimiaghat near
Jharkhand which is about 1152 kms. away from Delhi, would have definitely
undergone grave strain and stress due to such long distance driving. The
deceased being a professional heavy vehicle driver when undertakes the
job of such driving as his regular avocation it can be safely held that
such constant driving of heavy vehicle, being dependant solely upon his
physical and mental resources & endurance, there was every reason to
assume that the vocation of driving was a material contributory factor if
not the sole cause that accelerated his unexpected death to occur which
in all fairness should be held to be an untoward mishap in his life span.
Such an ‘untoward mishap’ can therefore be reasonably described as an
‘accident’ as having been caused solely attributable to the nature of
employment indulged in with his employer which was in the course of such
employer’s trade or business.
28. Having regard to the evidence placed on record
there was no scope to
hold that the deceased was simply travelling in the vehicle and that
there was no obligation for him to undertake the work of driving.
On the
other hand, the evidence as stood established proved the fact that the
deceased was actually driving the truck and that in the course of such
driving activity as he felt uncomfortable he safely parked the vehicle on
the side of the road near a hotel soon whereafter he breathed his last.
In such circumstances, we are convinced that the conclusion of the
Commissioner of Workmen’s Compensation that the death of the deceased was
in an accident arising out of and in the course of his employment with
the second respondent was perfectly justified and the conclusion to the
contrary reached by the learned Judge of the High Court in the order
impugned in this appeal deserves to be set aside. The appeal stands
allowed. The order impugned is set aside. The order of the Commissioner
for Workmen’s Compensation shall stand restored and there shall be no
order as to costs.
…..……….…………………………...J.
[T.S. Thakur]
…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
December 14, 2012
