the High Court has granted the Writ of Mandamus directing the Indian Oil Company to allot the dealership of the site located at Thane Belapur Road, Village Mahape, Navi Mumbai, Maharashtra to Shri Ashok Shankarlal Gwalani (hereinafter referred to as the “respondent”) we have no other option but to set aside the order of the High Court. Accordingly, the order and judgment dated 29.9.2010 passed by the High Court of Bombay is set aside with a liberty to the Competent Authority to re-advertise the petrol/diesel retail outlets in question and to make a fresh selection in accordance with law. The appeal is allowed with aforesaid observation and directions. There shall be no order as to costs.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  9101    2012.
                  (Arising out of SLP(C) No.31932 of 2010)


    SR. DIVISIONAL RETAIL SALES MANAGER,
    INDIAN OIL CORPORATION LTD.
    THROUGH POA HOLDER & ORS.        . . APPELLANT(S)


                            VERSUS


    ASHOK SHANKARLAL GWALANI               . .RESPONDENT(S)







                               J U D G M E N T


    SUDHANSU JYOTI MUKHOPADHAYA, J.


            Leave granted.
      2.    The present appeal has been filed against  the  impugned  order
    dated 29th September, 2010 passed by the  Bombay  High  Court  in  Writ
    Petition No. 5032 of 2010 wherein the High Court has granted  the  Writ
    of Mandamus directing the Indian Oil Company to allot the dealership of
    the site located at Thane Belapur Road, Village  Mahape,  Navi  Mumbai,
    Maharashtra to Shri Ashok Shankarlal Gwalani (hereinafter  referred  to
    as the “respondent”)
    3. The relevant facts as pleaded by the appellant are as follows:
           On  11th  June,  2005,  the  Indian  Oil   Corporation   Limited
    (hereinafter referred to as the “Company”) published a proclamation  in
    leading newspapers and invited applications for grant of  petrol/diesel
    retail outlets (dealership) for  various  locations  in  the  State  of
    Maharashtra.  The respondent on 14th July, 2005, amongst others applied
    for the same.  Interviews were conducted on  9th-10th  December,  2005.
    One Mr. Nilesh L. Kudalkar was placed at the top  of  the  merit  panel
    while the respondent was placed second and one Mr. K. Srinadha Rao  was
    third.  However, since the difference between  the  marks  of  the  top
    three candidates was within 5%,  the result of the interview  was  kept
    in abeyance in accordance with the policy of the company dated April 7,
    2005.    A  Screening Committee  was  established  which  reviewed  the
    markings and carried out another interview  of  the  three  candidates.
    The result was declared on 4th April, 2006 and Mr. Nilesh  L.  Kudalkar
    was first in the merit panel.
    4. Being aggrieved  respondent  and  Mr.  K.  Srinadha  Rao  both  made
       complaints on 10.4.2006 and 19.4.2006 respectively  to  the  company
       alleging irregularities in the  selection  process.   In  accordance
       with the policy dated 1st September, 2005, an investigation was made
       by the Company into the allegations made by  them.   It  was  found,
       among other things, that the respondent and Mr. Srinadha Rao had not
       been marked correctly as regards their financial capability and that
       both had failed to  provide  the  attested  documents  as  had  been
       specifically  required   under   the   advertisement.    Since   the
       allegations  in  the  complaints  were  found  to  have  merit,  the
       selection was cancelled and all the candidates were to be called for
       re-interview.  In the  meantime,  on  28th  April,  2006,   one  Mr.
       Pritesh Chhajed,  who was an M&H Contractor operating  on  the  site
       filed Civil Suit No. 230/2006 before the Thane  Sr.  Division  Court
       seeking an injunction  against  the  company  from  terminating  the
       contract and evicting him from the land.  He was unsuccessful in the
       same and filed an appeal before the  Bombay  High  Court  which  was
       dismissed by the High Court on 27th June, 2008 and he was  asked  to
       vacate the site by December 31, 2008.
    5. Re-interviews were conducted on 22nd and 24th December,  2008.   The
       respondent was found to be the only candidate in  the  merit  panel.
       However, complaints were received from Mr. Pritesh Chajjed (who  had
       also appeared in the interviews) on 26th December, 2008 and from Mr.
       K. Srinadha Rao on 16.12.2008, 23.12.2008, 30.12.2008, 2.01.2009 and
       10.02.2009.   Again on 30.12.2008, a one man Inquiry Commission  was
       appointed  to  investigate  the   allegations   contained   in   the
       complaints.  Also on 14.1.2009, Mr. Nilesh L. Kudalkar filed a  Writ
       Petition vide no. 113 of 2009 against the company for cancelling the
       merit list and declaring him to be the  no.1  candidate.   The  High
       Court of Bombay was  pleased  to  dismiss  the  aforementioned  writ
       petition in April, 2009.
    6. In the meantime, the inquiry instituted by the Company revealed that
       the complaints made by various persons had merit.
    7. Therefore, on 6th August, 2009, the appellants sought approval  from
       their management for re-advertisement  of  the  location.   On  18th
       August, 2009, the Company management advertised for re-interview  of
       all the candidates including scrutiny  of  all  documents  from  the
       initial stage in order to  remove  all  errors  from  the  selection
       process. Since the code of conduct for elections was in  force,  the
       re-interview was deferred till its withdrawal.
    8. In December, 2009, the L-1 Committee was appointed before which  the
       applications  along  with  other  documents  of  all  ten   eligible
       candidates were placed. The  Committee  submitted  its  report.  The
       candidature of the respondent was rejected on the  ground  that  the
       ‘Relationship Affidavit’  was not as per the format.


    9. On 3rd June, 2010, respondent was communicated about  the  rejection
       of his application.


   10. Being aggrieved respondent filed a writ  petition  being  WP(C)  No.
       5032 of 2010 before the Bombay High Court on 17.6.2010 praying inter
       alia for issuing of an appropriate writ directing the appellants  to
       allot the dealership at the site  as  per  the  advertisement  dated
       11.6.2005 and setting aside the letter dated  3.06.2010  to  enforce
       the decision of the Selecting Committee dated 24.12.2008, which  was
       allowed by the impugned order.
    According to the appellants, considering  that  all  the  former  merit
    panels were vitiated on account of grave errors,  including  complaints
    received with regard to all the interviews, the Company is desirous  of
    undertaking  the  selection  process  de  novo  by  re-advertising  the
    location.
   11. Learned counsel for the appellant submitted that  on  8th  December,
       2009, L-I Committee was nominated in view of  the  complaints  filed
       by one Srinadhrao and Shri Pritesh Chajed.   These  complaints  were
       thoroughly investigated  and  report  dated  24th  March,  2009  was
       received by the Company.  Pursuant to the said  report  the  Company
       decided to look into the matter from the scrutiny level and  to  re-
       interview all the candidates so as to  remove  the  defects  in  the
       selection process.  Re-scrutiny of all the applications was made and
       during  that  process  the  documents  including   the   application
       submitted by the respondent found to be suffering from deficiencies.
        It was contended that the affidavit submitted by the respondent was
       not as per the format and, therefore, his application was liable  to
       be rejected as per the policy. Consequently, the impugned letter was
       issued to the respondent.
   12. The aforesaid fact was disputed by the learned counsel appearing  on
       behalf of the respondent.  They invited the affidavit filed  by  the
       Company in Writ Petition No. 113 of 2009 wherein they supported  the
       selection process  as  well  as  the  merit  list  prepared  by  the
       Selection Committee on  24.12.2008.   In  the  said  affidavit,  the
       allegation that the respondent was less meritorious  was  denied  by
       the Company.   The  stand of the Company was that  the  decision  to
       award dealership to the respondent did not suffer from any  manifest
       error, equity, fair play  and  justice.    In  the  said  case,  the
       Company pleaded that the decision in favour of  the  respondent  was
       transparent and was not motivated on any  consideration  other  than
       probity.   The said case was filed by second person challenging  the
       selection of the respondent. The Division Bench of the  Bombay  High
       Court after hearing both the parties vide order  dated  17th  April,
       2009 in Writ Petition No. 113 of 2009 held that the High Court could
       not sit in appeal over the decision of the selection  committee  and
       the decision is not arbitrary.  The Court further held that the writ
       petitioner of the said case  (Writ  Petition  No.  113/2009)  having
       participated in the subsequent selection without any protest,  could
       not revert back to the earlier selection process.
   13. On 17th September, 2012, after hearing both the parties, this  Court
       requested   the learned Attorney General who was appearing on behalf
       of the Company to give us the reasons in detail for cancellation  of
       the first and second rounds of the selection  process  held  by  the
       authorities concerned. The  learned Attorney General  after  meeting
       with the representative  of  the  Company  in  his  office  on  22nd
       September,  2012 and after going  through  the  relevant  papers  of
       interviews submitted a report;  the relevant portion of which  reads
       as under:-
                 “ In respect of the first round of the  selection  process,
           in which interviews were conducted on 9th  land  10th  December,
           2005,  the Screening  Committee  had  released  the  results  on
           4.4.2006 subsequent to which complaints received from Shri Ashok
           Shankarlal Gwalani on 10.04.2006 and from Shri K.  Srinadha  Rao
           on 19.4.2006.  The General Manager, Maharashtra State Office  of
           the Indian Oil Corporation appointed an   inquiry  committee  to
           investigate the complaints.  Based on the Inquiry Report,  which
           was submitted  on October 7, 2006,  the Maharashtra State Office
           prepared a Note dated 17.10.2006 which was finally approved  and
           endorsed on November 7, 2006 by  which a decision was  taken  in
           accordance with existing guidelines  to  re-interview   eligible
           candidates as the merit panel had been vitiated due to errors in
            evaluating financial parameters of the  candidates in the merit
           panel which resulted in a change in the merit panel.    A  typed
           copy of the Note  dated  17.10.2006  has  been  annexed  by  the
           petitioner  in  the  Application  to  bring  on  record   facts,
           subsequent events and documents, marked as Annexure P-5 thereto.


      4.    In respect of the second round  of  the  selection  process,  in
           which interviews were conducted on  December  22-24,  2008,  two
           complaints  were  received  from   Shri   Pritesh   Chhajed   on
           26.12.2008 and from Shri K.Srinadha Rao  on  16.12.2008  with  a
           reminder on  10.1.2009.   An  inquiry  report  was  prepared  by
           investigating officer on 24.3.2009 which was  finalized  by  the
           Maharashtra State Office vide Note dated 13.4.2009.  In relation
           to the complain of Shri  Pritesh  Chhajed,  it  was  found  that
           after giving benefit to the complainant, the following  position
           emerged:


                 “a)   Even if it  is  considered  giving  benefits  to  the
                 complainant candidates Sri Pritesh J. Chajjed  as  eligible
                 based  on  enquiry  findings,  the  number  one  empanelled
                 candidate remains unchanged as  1st  in  the  Merit  Panel,
                 however,  the  panel  will  get  changed  by  adding  other
                 qualified candidates in 2nd rank at least.


                    b) The other two complainant candidates would be  ranked
                       hypothetically as below”




                 |Name of   |Marks by the|Marks by  |% marks   |Empanelmen|% marks  |Empanelmen|
|the       |L1 committee|the L2    |allotted  |t by      |evaluated|t after   |
|candidate |            |committee |by        |interview |if       |deviations|
|          |            |          |interview |committee |deviation|taken into|
|          |            |          |committee |          |s taken  |considerat|
|          |            |          |(out of   |          |into     |ion       |
|          |            |          |total 65  |          |considera|(analysis)|
|          |            |          |marks)    |          |tion     |          |
|Shri Ashok|41.78       |5.2       |72.38%    |1         |NA       |          |
|Gwalani   |            |          |          |          |         |          |
|Shri      |35.67       |7.4       |Ineligible|Ineligible|66.26%   |          |
|Pritish   |            |          |(42.07)   |          |         |          |
|Chhajed   |            |          |(66.26)   |          |         |          |

|Shri K.   |31.00       |6.9       |58.30     |Not       |NA       |          |
|Shrinadhar|            |          |          |qualified |         |          |
|ao        |            |          |          |          |         |          |
|Shri      |32.85       |5.8       |59.46     |Not       |NA       |          |
|Keshavrao |            |          |          |qualified |         |          |
|Gopairao  |            |          |          |          |         |          |
|Shinde    |            |          |          |          |         |          |

           Based on evaluation by L1  (Annexure  A)  and  L2  (Annexure  B)
           committee the mark sheet as  complied by the interview committee
           (Annexure C), the marks awarded to the complainant  Sri  Pritosh
           Chhajjed is computed  in the above table, though  the  same  was
           not declared by the committee due to his ineligibility.)


           Considering that the marks allotted by L1 (35.67) and  L2  (7.4)
           to Sri Pritish Chajjed is added,  he  gets  66.26%  marks  (i.e.
           43.07 out of 65) and would have become 2nd in  the  merit  panel
           whereby the original merit  panel  dated  23.12.08  undergoes  a
           change with two candidates  in the merit panel  instead  of  one
           empanelled candidate  and  thus  the  selection  gets  vitiated.
           Hence,  as  per  policy  in  vogue,  since  the  above  referred
           selection gets  vitiated  and  also  there  are  other  eligible
           candidates available,  the location should be reinterviewed with
           all the  eligible candidates.


           c)    From the records, it is also observed  that  the  location
           Mahape had been originally advertised on 11.6.2005 against which
           based on interview,  the  first  merit  panel  was  declared  on
           4.4.4006,   thereafter   there   were   complaints   and   after
           investigation as per  grievance   redressal  procedure  and  the
           decision by the competent authority,  re-interview  of  all  the
           eligible candidates was conducted on 22.12.08 to 24.12.2008  and
           accordingly the above referred merit panel dated 24.12.2008  was
           declared by the interview committee.   The selection process for
           this location remained inconclusive for the last four years  and
           is yet to be concluded.  Further it is  also observed that  this
           will be a  case  of  2nd  re-interview  with  all  the  eligible
           candidates for the same location.  In all likelihood,  based  on
           the above investigation details and analysis,  there may not  be
           any further change in the merit panel in  respect of  the  first
           empanelled  candidate.     Additionally,  there  may  be   other
           candidates who may  come  in  the  panel  in  the  2nd  and  3rd
           position.     Though  as  per  policy  in  vogue   re-interviews
           recommended.”


     5. In view of this,  the following  recommendations were  put  up  for
        final verdict by the competent authority in the matter:-


           “  1.    Since  the  above   referred   selection   process   on
           investigation gets vitiated and also there  are  other  eligible
           candidates available, the location should be re-interviewed with
           all the eligible  candidates  as  per  selection  guidelines  in
           vogue.
              2.    However,  the competent authority, i.e. State Head, MSO
           while giving the final order in the  above  investigation  (vide
           report dated 6.2.2009 and 24.3.2009 by Sri R. Ganeshan as placed
           below), may also like to take a view on the facts given in  para
           (c) above,   whether to continue with the existing  merit  panel
           dated 24.12.08 with the lone candidate  whose  position  is  not
           disturbed as per above analysis  remaining   as  1st  empanelled
           candidate or to go for re-interview as per extant guidelines.
             3.  Action is recommended in view of  the  lapses  by  the  DO
           Coordinating officer  and  interview   committee  (L2)  for  not
           accepting the duplicate of original marksheet as detailed  above
           in the IO’s report in tabulation.

     6. These recommendations were studied/reviewed by the new Retail  team
        at the MSO and comments were prepared  on  29.07.2009,  which  were
        approved on 3.08.2009:


           1.  Since  vitiation  in  the   selection   process   has   been
              established, as recommended, it  is  agreed/recommended  that
              the location should  be  re-interviewed  as  per  the  extant
              policy guidelines.
           2. In view  of  Sr.  No.1  above,  in  which  vitiation  in  the
              selection  process  has  been  established  and  re-interview
              recommended, in order to have transparency in selection it is
              recommended that re-interview be done with all  the  eligible
              candidates as per the extant policy guidelines.
           3. Chief Manager (RS), MSO has proposed action against the DO Co-
              ordinating and the L2 Committee.  Our comments are as under:


                 In this case the candidate had brought the  Duplicate  copy
                 of the original, which in its strictest sense  is  not  the
                 original.  Logically duplicate copy of the documents should
                 have  been  considered  as   original   for   the   purpose
                 verification.  This could/should have been got confirmed by
                 the coordinating officer and implemented.


                 However   it   appears    that    the    DO    coordinating
                 officer/L2Committee  has  strictly  gone  by   the   policy
                 guidelines in this regard to verify the  attested  copy  of
                 the document  submitted  with  the  application,  from  the
                 Original to be brought by the  candidate  at  the  time  of
                 interview.    Therefore  technically  the  DO  coordinating
                 Officer/L2 Committee has strictly followed the guidelines.


                 ED MSO has detailed his views & finally opined  as  follows
                 in:


                 “In order to avoid any further  complication  and  to  give
                 fair chance to  everyone,  in  my  opinion  this  selection
                 process should be cancelled and the location should be  Re-
                 advertised.  Since there is  no  specific  policy  in  this
                 regard it is suggested that HO opinion may be sought.”


   14. From the pleading of the parties as noticed above  and  the  record,
       the following facts emerges:-
           (a)   The proclamation was made  on  11.6.2005  i.e.  more  than
           seven years ago but till date no person  has  been  granted  the
           dealership in question.
           (b)   The first interview was conducted  on  9th-10th  December,
           2005 in which one Mr. Nilesh L. Kudalkar was placed at  the  top
           of the merit panel while the respondent was  placed  second  and
           one Mr. K. Srinadha Rao was third.  When  complaints  were  made
           against the selection as well as an allegation  of  irregularity
           in the process, after investigation, the Company found that  the
           respondent and Mr. Srinadha Rao had not  been  marked  correctly
           and both failed to provide the attested documents  as  had  been
           specifically required under the advertisement and therefore  the
           first selection was cancelled.
           (c)   The second re-interview was called for  and  conducted  on
           22nd and 24th December, 2008.   In  the  said  re-interview  the
           respondent was the only eligible candidate in the  merit  panel.
           On the basis of the complaints made by other persons a  one  man
           Inquiry Commission was appointed.  On the basis of the report of
           the  Investigating Officer dated 6.2.2009 and 24.3.2009, it  was
           found that there were lapses by the DO Coordinating Officer  and
           the interview committee (L2), in not accepting the duplicate  of
           the original mark-sheet  of  a  candidate  as  detailed  in  the
           Inquiry Officer report in tabulation.
           (d)   The record further shows that the respondent  submitted  a
           representation before the Chairman of the Company  on  24.8.2009
           with the reminder filed on different  dates  including  the  one
           dated 23.1.2010. The Senior Divisional Retail Sales  Manager  by
           communication dated 3.06.2010 informed the respondent  that  “on
           perusing the application and the accompanying  documents  it  is
           observed that Relationship Affidavit  not  as  per  format.   We
           regret that in view  of  the  same  your  application  is  found
           ineligible.”
           In the aforesaid background, the DGM  (RC)  by  its  note  dated
    13.8.2009  rejected  the  opinion  submitted  by  the  Office  for  re-
    interview.
    15.     It is not clear as to  how  the  assessment  was  made  by  the
    authorities as apparent from the  investigation  report  (Annexure-R6).
    The Investigating Officer in the summary of investigation submitted his
    conclusion, the relevant potion of which reads as follows:
             “Summary of Investigation:
             Based  on  documents  provided/handed  over  by  DO,  as   also
          application the policy guidelines RO/6002 dt. 7.4.2005 &  4.4.2006
          the following is the conclusion:
                  A) L-1 Committee has not strictly followed the  guidelines
                     regarding signing  of  all  documents  for  assessment.
                     However, irrespective of this deviation, L-1  Committee
                     has considered all documents for assessment.
             B)   In case of ‘Liquid Cash in the form of Bank Fixed  Deposit
          etc. and ‘Fixed and Movable Assets” as detailed in my report,  for
          financial capability, the L-1 Committee, Screening  Committee  has
          given weight-age to documents of family  members/  relatives  even
          though ‘No Consent’ affidavit/letter is available.  Therefore,  in
          my final assessment, in line with the policy  ‘No  weight-age  has
          been given to documents without consent.   Therefore  final  marks
          have undergone change.  Hence in line with  the  above  the  final
          result is as under:


                 As per Interview Committee (in line with merit):


                 |Sr.No|Name of candidate     |Total     |
|.    |                      |marks     |
|1    |Shri Nilesh Laxmikant |56.50     |
|     |Kudalkar              |          |
|2    |Dr Ashok Shankarlal   |55.33     |
|     |Gwalani               |          |
|3    |Shri K. Srinadharao   |54.33     |


                 As per Screening Committee (in line with merit):


                 |Sr.No|Name of candidate     |Total     |
|.    |                      |marks     |
|1    |Shri Nilesh Laxmikant |59.0      |
|     |Kudalkar              |          |
|2    |Shri K. Srinadharao   |57.0      |
|3    |Dr Ashok Shankarlal   |52.0      |
|     |Gwalani               |          |






                 As per Investigation (in line with merit):


                 |Sr.No|Name of candidate     |Total     |
|.    |                      |marks     |
|1    |Dr Ashok Shankarlal   |56.78     |
|     |Gwalani               |          |
|2    |Shri K. Srinadharao   |53.63     |
|3    |Shri Nilesh Laxmikant |48.52     |
|     |Kudalkar              |          |

           From the aforesaid  report,  it  is  clear  that  the  Interview
    Committee, Screening Committee and the Investigation  Officer  assessed
    the three candidates  in  three  different  groups  due  to  which  the
    position of the candidates changed in the merit list  prepared  by  the
    Interview Committee, Screening Committee and the investigation Officer.




    16.     In the present  case,  the  High  Court  has  not  noticed  and
    discussed the  aforesaid  facts  and  without  discussing  the  further
    developments as taken place after 24.12.2008, directed  the  appellants
    to issue the Letter of Intent in favour of the respondent.  Though  the
    High  Court  noticed  the  stand  taken  by  the  appellants  that  the
    ‘relationship affidavit’ submitted by the respondent  was  not  as  per
    format, it failed to discuss the effect of such an incomplete affidavit
    in the matter of selection.


    17.     Generally, if an irregularity is  detected  in  the  matter  of
    selection or preparation of a panel it is desirable  to  have  a  fresh
    selection instead of re-arranging  the  panel  which  is  found  to  be
    vitiated.   The  Authority  empowered  to  appoint,  is  the  competent
    authority to decide as to whether the panel  should  be  discarded  and
    there should be a fresh selection in view of the facts narrated  above.
    In such  circumstances,  the  High  Court  under  Article  226  of  the
    Constitution of India ought to not have interfered with the decision of
    the competent authority in canceling the selection.


    18.     For the reasons aforesaid, we have no other option but  to  set
    aside the order of the High Court.  Accordingly, the order and judgment
    dated 29.9.2010 passed by the High Court of Bombay is set aside with  a
    liberty to the Competent Authority to  re-advertise  the  petrol/diesel
    retail outlets in question and to make a fresh selection in  accordance
    with  law.  The  appeal  is  allowed  with  aforesaid  observation  and
    directions.  There shall be no order as to costs.




                                                    ………..………………………………………..J.
                                  ( SWATANTER KUMAR )






                                                      ………………………………………………….J.
                         (SUDHANSU JYOTI MUKHOPADHAYA)


NEW DELHI,
DECEMBER 14, 2012.
-----------------------
21

whether 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 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. 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.

                                                                  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