1. Heard learned counsel for the parties.
2. The present appeal is directed against the judgment and order dated 21.11.2005 passed by Commissioner Workmen's Compensation Act, 1923 and Deputy Commissioner Meerut, in Case No. W.C.A. 128 of 2003, whereby the Commissioner has partly allowed the claim petition of Somdatt Sharma- respondent no. 1.
3. The brief facts of the case are that the respondent no. 1 instituted a claim petition before the Commissioner Workmen's and Deputy Labour Commissioner, Meerut claiming compensation for the death of his son Arun Kumar.
4. The case of the respondent no. 1 was that his son was employed with respondent no. 2- M/s Mother Dairy Food Processing Limited for the work of packing milk powder. While performing his duty in the shift of 2 PM to 10 PM on 1.12.2002, a quarrel had taken place between Arun Kumar and one Balraj. It is alleged that Balraj slapped Arun Kumar and attacked him by scissor which resulted into the death of Arun Kumar.
5. F.I.R. was lodged in respect of aforesaid incident by one Sunil Kumar Sharma, who was employee of respondent no. 2, against Balraj under Section 302 I.P.C. According to the respondent no. 1, the age of deceased was 21 years and he was getting a salary of Rs.2400/- per month.
6. The claim petition was contested by respondent no. 2 contending therein that respondent no. 3 M/s Bharat Trading Company is the contractor of respondent no. 2 and deceased was employee of the respondent no. 3.
7. The respondent no. 3 filed written statement wherein it admitted the employment of deceased. Respondent no. 3 further pleaded that the deceased was paid wages @ 79.35 paise per day. It was further pleaded that the claimant was retired from Military services and was getting pension and, hence, he was not dependent upon the deceased. It was also pleaded by the respondent no. 3 that the death of deceased was caused due to enmity with Balraj and, therefore, injuries alleged to have been suffered by the deceased which caused his death could not be said to have arisen out of and in the course of employment. On the basis of aforesaid pleadings in the written statement, the respondent no. 3 denied its liability to pay any compensation.
8. The insurance company also filed written statement wherein it denied its liability to pay compensation. The insurance company filed additional written statement wherein it stated that murder was not an accident within the terms of the insurance policy. Thus, the insurance company is not liable to pay compensation. In this regard paragraph no. 2 of the additional written statement of the company is reproduced herein below:
"2. That, this policy was issued to cover the risk of 100 employees but strictly as per the terms of insurance policy. The policy provides that if at any time during the period of insurance any employee in the Insured's immediate service shall sustain personal injury by accident or disease arising out of and in the course of his employment by the Insured in the business and if the Insured shall be liable to pay compensation for such injury under the law then subject to the terms exceptions and conditions contained in the policy the company will indemnify the insured. 'Murder' is not an 'accident' within the terms of insurance policy or otherwise. Besides this as per 'Exceptions' contained in the policy the answering opposite party in not liable to pay compensation in respect of any injury by accident attributable to hostilities."
9. The Commissioner without framing any issue as required under Rule 28 of the Workmen's Compensation Rules 1924 proceeded to decide the case, and by the judgment impugned in the appeal, he has fastened the liability upon the appellant insurance company to pay compensation. The Commissioner held that deceased was murdered during the course of his duty and, consequently, he held the liability of the insurance company to pay the compensation.
10. The counsel for the appellant has contended that Commissioner had no jurisdiction to entertain the claim petition as the injuries which caused the death could not be said to have arisen out and in the course of his employment. He submits that the liability to pay compensation under the Worksmen's Compensation Act can be fastened upon employer only if the personal injury is caused to the workman in an accident arising out of and in the course of his employment. He submits that murder is not an accident and, hence, employer cannot be made liable to pay any compensation under Workman's Compensation Act.
11. He submits that injuries causing death of the deceased had no casual connection with the work of the deceased in the course of employment. He further submits that the Commissioner has failed to record any finding, as to whether, the death of deceased could be said to have arisen out of and during the course of employment. The submission is that in the absence of any finding by the Commissioner with regard to issue that the death had occurred due to accident arising out of and in the course of his employment, the Commissioner has acted illegally and without jurisdiction in entertaining the claim petition. Thus, the submission of the counsel for the appellant is that the order of the Commissioner is illegal and not sustainable in law.
12. Per contra, learned counsel for the respondent submits that the employment of deceased with respondent no. 2 is admitted by the appellant and further it is also established from the record that the deceased had died during his duty and, hence, the necessary ingredients as provided in Section 3(1) of the Workman's Compensation Act 1923 which makes the employer liable to pay compensation in the accident is present in the instant case, hence, the Commissioner has rightly held the liability of the employer to pay compensation, and further the appellant being the indemnifier was rightly fastened with the liability to pay compensation.
13. He further submits that the injuries causing the death of deceased had arisen out of and during the course of employment and, hence, the judgment of the Commissioner is correct and the finding recorded by the Commissioner are based on proper appreciation of facts and evidence on record and, being finding of fact cannot be interfered with in appeal under Section 30 of the Worksmen's Compensation Act, as the appeal under Section 30 of the Workmen's Compensation Act is maintainable on substantial question of law.
14. I have considered the rival submissions of the parties and perused the record.
15. Before adverting to the respective arguments of the parties, it will be pertinent to notice Section 3(1) of the Workmen's Compensation Act, (hereinafter referred as "Act, 1923") which provides for employer's liability for compensation. Section 3(1) of the Workman's Compensation Act reads 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) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;
(b) in respect of any injury not resulting in death or permanent total disablement caused by an accident which is directly attributable to -
(i) the employee having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees or
(iii) the wilful removal or disregard by the employee of any safety guard or other device he knew to have been provided for the purpose of securing the safety of employee.
16. According to Section 3(1) of the Act, 1923, the liability of the employer to pay compensation would arise only when the injuries alleged to have been suffered by the workman arose out of and in the course of his employment. The test as to whether the injuries arose out of and in the course of his employment should meet the following requirement:
(i) There must be a casual connection between the accident and the employment.
(ii) The onus is upon the appellant or the claimant to prove that the accident had occurred on account of risk which is an incident of the employment.
(iii) The appellant/claimant has to bring on record the evidence establishing that the cause of injury had link with the nature of work performed by the Workman.
17. In this regard, at this stage, it would be useful to notice few judgments of the Apex Court wherein the Apex Court has occasion to consider and interpret the word 'accident arising out of and in the course of his employment' referred in Section 3 of the Act 1923.
18. In the case of Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Company Limited and another (2009) 13 Supreme Court Cases 405, the apex Court had considered the fact situation when the deceased was employed as driver of truck and was driving the vehicle on the instructions of the owner of the truck, and when the vehicle reached Gurugunta, he went to the pond and while taking bath at a pit, he had slipped and had drowned. The Apex Court in the said case has held that the cause of death of the deceased had no casual connection with the nature of work performed by the deceased in his employment. Thus, the Apex Court was of the view that the injury which caused the death of workman could not be said to have arisen out of and in the course of employment, and consequently, the Apex Court held that the liability of compensation cannot be fastened upon the owner or the insurer of the vehicle to pay compensation.
19. In the case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and another (2007) 11 Supreme Court Cases 668, the apex Court had occasion to consider a fact situation where the workman while performing his duty had suffered chest pain and died. The cause of death in the post-mortem was revealed as cardiac arrest due to rupture aortic aneurysm. The Apex Court held that the owner is not liable for payment of compensation on the ground that the necessary ingredients of Section 3(1) of the Act, 1923 which attracts the liability of the employer to pay compensation were not present in the case. It would be useful to notice paragraph nos. 22 to 24 of the case of Shakuntala Chandrakant Shreshti (supra) which are reproduced herein below:
"22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation, 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 causal 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.
23. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.
24. There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
20. In the case of Jyothi Ademma Vs. Plant Engineer, Nellore and another (2006) 5 Supreme Court Cases 513, the workman had died due to heart attack at the work place and it was found that the workman had been suffering from heart disease and was receiving treatment prior to his death at work place. The Apex Court absolved the owner of its liability to pay compensation on the ground that the cause of death of the workman had no casual connection with the nature of work performed by the workman.
21. The argument of both the parties have to be tested on the touchstone of the principles enunciated by the Supreme Court in the above judgments.
22. Admittedly, in the present case, the workman had scuffle with Balraj who had poked the scissor in the stomach of deceased, and due to this, the deceased suffered severe injuries causing his death. There is no pleadings in the claim petition that the cause of death had any casual connection with the nature of duty performed by the deceased in the employment. There is no evidence on record to establish that the cause of death had any connection with the nature of employment of the deceased.
23. The Commissioner has not recorded any finding on the issue as to whether the injuries which caused the death of workman can be said to have been arisen out of and in the course of employment, though, the finding has been recorded by the Commissioner that the deceased had been murdered on duty in order to assume the jurisdiction to entertain the claim petition.
24. In the case in hand, the order of the Commissioner holding the liability of the insurance company to pay compensation is not sustainable in view of the judgment of the apex court referred above, as admittedly the workman was murdered and injury causing death of workman had no causal connection with the nature of work performed by the deceased.
25. The contention of the counsel for the respondent that the finding in respect of death of deceased recorded by the Commissioner is a finding of fact and the appeal is not maintainable as no substantial question is involved in the present appeal has no substance in view of the judgment of the Apex Court in the case of Shakuntala Chandrakant Shreshti (supra). The Apex Court has held that the jurisdictional question will involve a substantial question of law. It is useful to notice paragraph 40 of the aforesaid judgment which reads as under:
"40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prasharam Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be a proximate nexus between cause of death and employment. A stray statement made by the Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination."
26. Thus, for the reasons given above, the order of the Commissioner dated 21.11.2005 is not sustainable and is hereby set-aside.
27. However, in the interest of justice, it is further provided that Rs.1,50,000/- paid to the claimant/respondent no. 1 under the interim order of this Court dated 18.1.2006 shall not be recovered from the respondent no. 1. The Commissioner of workmen's is further directed to refund the balance amount to the appellant which has been deposited by the appellant in compliance of statutory requirement of proviso to Section 30 of the Act.
28. The appeal is allowed. There shall be no order as to costs.
Order Date :- 27.11.2018 Ishan