The Oriental Insurance Company ... vs Daivshala
2011 Latest Caselaw 156 Bom

                                        1




                                                                      
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                              
                           BENCH AT AURANGABAD


                      FIRST APPEAL NO.2015 OF 2011




                                             
    The Oriental Insurance Company Ltd.,
    The Divisional Manager,
    The Divisional Office-442,
    West-Mangalwar Peth, Chati Galli,




                                    
    Solapur - 413002                                          APPELLANT


               VERSUS
                      
                     
    1. Daivshala W/o.Shahu Jadhavar,
        Age-Major, Occu-Household,
        R/o.Tadgaon, Tal.Kallam,
        Dist.Osmanabad
      


    2. Shivaji Shahu Jadhavar,
   



        Age-Major, Occu-Education,
        R/o.As above.

    3. Chandrakant Shanu Jadhavar,





        Age-Minor, Occu-Education,
        u/g.applicant no.1 R/o.As above,
     
    4. Ku.Ashwini D/o.Shahu Jadhavar,





        Age-Minor, Occu-Education,
        u/g.Applicant no.1 R/o.As above,

    5. Sow.Savita W/o.Balaji Sangale,
        Age-Major, Occu-Household,
        R/o.Chumbh, Tal.Barshi,
        Dist.Solapur. 

    6. Smt.Laxmibai Sampatrao Jadhavar,
        R/o.Major, Occu-Household,




                                              ::: Downloaded on - 09/06/2013 17:58:26 :::
                                               2




                                                                                  
        R/o.Tadgaon, Tal.Kallam,




                                                          
        Dist.Osmanabad

    7. The Managing Director,
        Terna Shetkari Sahakari Sakhar




                                                         
        Karkhana Ltd., Terna Nagar,
        Dhoki, Tal. And Dist.Osmanabad                          RESPONDENTS

    Mr.U.S.Malte, learned counsel for the appellant.




                                            
    Mr.S.B.Ghute, learned counsel for respondent no.7
    Mr.S.A.Wakure, learned counsel for respondents no.1 to 5. 
                          
    Appeal is dismissed against respondent no.6 as per order dated 
    10/12/2010. 
                         
                                 (CORAM : A.V.POTDAR, J.)


                                  RESERVED ON      : 23/11/2011
                                  PRONOUNCED ON : 01/12/2011
      
   



    JUDGMENT : 

1. Challenge in this appeal by original respondent no.2, The

Oriental Insurance Company Ltd. is to the judgment and award

passed in W.C.A.No.28 of 2005 by the learned Jt.Civil Judge, S.D. 2

on 26/06/2009, by which the appellant was directed to deposit an

amount of Rs.3,26,140/- alongwith interest @ 12% p.a., from

22/05/2003 i.e. after one month of incident till its realization.

2. Admit. By consent of the parties, heard finally at this stage.

3. Such of the facts as are necessary for the decision in this

appeal can be summarized as :

Shahu Jadhavar was serving with Terna Shetkari Sahakari

Sakhar Karkhana Ltd., Terna Nagar, Dhoki, Tal. And

Dist.Osmanabad as a watchman. (hereinafter referred to as "sakhar

karkhana"). Respondent no.1 is wife of Shahu while respondents no.

2 to 4 are his sons, respondent no.5 is his daughter, while

respondent no.6 is his mother. On 22/04/2003, Shahu Jadhavar

was supposed to be on duty from 3.00 a.m. to 11.00 a.m. He was

r/o.village Tadgaon, Tal.Kallam, which is at the distance of about

21kms from Sakhar Karkhana. Shahu left his residence on his

motor-bike MH-13-C-6663, around 11.00 p.m. It is stated that he

met with an accident with an unknown vehicle in the vicinity of

village Dhorala, in which he succumbed to injuries on the spot.

Deceased Shahu was residing alongwith his family members at

village Tadgaon, Tal.Kallam as no service quarter was provided to

him. An accident was reported in the police station by one

Murlidhar Dattoba and FIR came to be registered vide CR No.

45/2003. Sakhar Karkhana /respondent no.7 is insured under

Workmen's Compensation Act before the Commissioner. On notice of

the application W.C.A.No.28/2005, respondent no.7 and the present

appellant appeared. The claim of the respondents no.1 to 6 was

contested by the respondent no.7 by filing written statement at Exh.

16. The authorized person, whose affidavit was filed on behalf of the

sakhar karkhana, has admitted that deceased Shahu was permanent

employee of their factory. They have also not disputed that deceased

Shahu met with an accident while coming to sugar factory on his

own motor-cycle. But according to respondent no.7, there was no

nexus of the said accident with the employment of the deceased and

hence it is contended that it can not be said that the deceased died

out of and during the course of employment. In the alternate, it is

alleged that if the respondents no.1 to 6 are held liable for

compensation, then the appellant should be held liable for the said

compensation as they have taken General Insurance Policy of their

employees.

4. Present appellant has also contested the said claim by filing

separate written statement at Exh.19. Amongst other grounds, they

have also disputed the relationship between the deceased and

respondent no.7. They have specifically disputed that even if it is

proved that the deceased was in the employment of the respondent

no.7, but considering the spot of accident, it can not be said that the

accident took place during the course of employment as the deceased

died far away from the place than the place of his employment.

Therefore the risk of death of such employee has not been covered

under the policy. It is prayed that the claim being devoid of any

merits, liable to be rejected against them.

5. Perusal of the record and proceedings received from the Lower

Court shows that the learned Lower Court has framed the issues at

Exh.21 and the parties were put for trial. Record and proceeding

further shows that during the proceeding before the Lower Court,

respondent no.1 examined herself and tendered the relevant

documents in respect of FIR registered at Crime No.45/2003. As

against this, respondent no.7 examined one Sarjerao Maruti Gaikwad

and tendered extract of monthly attendance register for the month of

April 2003. Copy of the Insurance Policy was also produced at Exh.

41 and it is not under dispute that it is general insurance policy of

the employees of respondent no.7 sakhar karkhana for the purpose of

Workmen's Compensation, for the period 01/04/2003 to

31/03/2004. Considering the evidence led by the parties before the

Trial Court, learned Lower Court answered issue no.8 in the

affirmative and held that the appellant and respondent no.7 are

jointly and severally liable for the compensation in the sum of Rs.

3,26,140/- alongwith interest by holding that the deceased died

during the course of employment and hence appellant and

respondent no.7 are jointly and severally liable for compensation

claimed by respondent no.1 to 6. That judgment and order is

impugned in this appeal challenged by the Insurance Company. At

this stage, it is to be noted that the judgment and award passed by

the learned Lower Court is not challenged by respondent no.7, the

sakhar karkhana.

6. I have heard respective learned counsels for the parties.

Learned counsel Shri.U.S.Malte, for the appellant, would submit

across the bar that it is not under dispute that the place where the

accident had occurred, is at the distance of about 5 to 6 km. away

from the sakhar karkhana premises of respondent no.7. It is also

not under dispute that this accident had occurred while deceased

was allegedly proceeding for his duties, but was dashed by the

unknown vehicle. Deceased was residing at the distance of about 21

kms. away from the factory. It is urged that as the accident is not

arisen out of the employment, then the Insurance Company is not

liable for any compensation to be paid to the respondents no.1 to 6 as

under the general insurance policy, risk is not covered under the

Workmen's Compensation Act.

7. Learned counsel appearing for respondent no.7 has only urged

before this Court that the place of accident is at the distance of 5 to 6

kms away from the factory premises, however, he had conceded the

fact that as no service quarter was provided to the deceased, he was

residing at Tadgaon.

8. It is urged on behalf of learned counsel for respondents no.1 to

6 that as the deceased was proceeding to factory to report his duties,

as no service quarter was provided to him, it is to be held that the

accident had occurred in the course of employment of respondent no.

7. As the employees of respondent no.7 are insured with the

appellant, then the Insurance Company is jointly and severally liable

to pay the compensation awarded by the learned Lower Court. In

substance, he has supported the judgment and award passed by the

Lower Courts for the reasonings recorded therein. In support of his

contention, reliance is placed in the matter of Assistant Executive

Engineer, Bijapur Versus Shantavva 2003-ACJ-0-79, 2001-ILR

(kar)-0-3031, in the matter of Superintending Engineer,

Mechanical-II, T.N.Electricity Board, Mettur Thermal Power

Station, Salem Dist. Versus Sankupathy, 2004-LLN-4-1053=2004-

CTC-5-321, on which reliance is also placed by the Lower Court in

its observation in paragraph no.18 and lastly on Parle Products Ltd.

Versus Subir Mukherjee, 2001-LLJ-1-964. In all these judgments,

it is held that if the employee met with an accident while reporting on

duties, his case is squarely covered under the provisions of Section 3

of The Workmen's Compensation Act and the relatives of the victim

are entitled for compensation. He has further relied upon the

observations of The Supreme Court in the matter of Mackinnon

Mackenzie and Co.Private Ltd., versus Ibrahim Mahommad Issak,

AIR 1970 Supreme Court 1906(1). At this stage only, I may express

that the facts and ratio led down in this judgment is totally different

from the facts and circumstances of the present appeal. Further

reliance is placed on the observations of the Supreme Court in the

matter of Mallikarjuna G.Hiremath Versus Branch Manager,

Oriental Insurance Co.Ltd., and another, AIR 2009 Supreme

Court 2019. I afraid to accept that in any manner, the observations

in this citation anyway help the respondents herein as it is

specifically observed by the Supreme Court in this rulling that

accident arising out of and in the course of employment, unless any

nexus is established between the death of an employee in that

accident in relation with his employment, the workmen is not

entitle/liable for any compensation either from the employer or from

the insurance company.

9. Per contra, in support of his submissions, learned counsel for

appellant has relied on the observations of the Apex Court in the

matter of Regional Director, E.S.I.Corporation versus Francis De

Costa and Another, 1997(Supp.) Bom.C.R. 904 : 1996(2) Mh.L.J.

911.

10. Considering the submissions across the bar, the point for

consideration in this appeal is, "whether the death of the employee,

the workmen, while he was proceeding to work, could be construed as

the death caused in the course of employment."

11. At this juncture, it is necessary to advert to the observations of

the Supreme Court in the matter of Regional Director (cited supra),

wherein it is observed in para no.6, 7, 8, 9 and 13 that,

6. In our judgment, by using the words "arising out of....his employment", the legislature gave a restrictive meaning to "employment injury ". the injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. "Out of" in this context, must mean caused by employment., Of course, the phrase "out of" has an exclusive meaning also. If a man is described to be out of his employment, it means he is without a job. The other meaning of the phrase "out

of" is "influenced, inspired, or caused by: out of pity; out of

respect for him". (Webster Comprehensive Dictionary- international Edition-1984). In the context of Section 2(8), the words "out of" indicate that the injury must be caused by an accident which had its origin in the employment. A

mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory. The phrase "out of-the employment" was construed in the case of South Maitland

Railways Pty. Ltd. v. James, 67 C.L.R 496, where construing the phrase "out or the employment", Starke, J,,

held "the words 'out of' require that the injury had its origin in the employment".

7. Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2(8) of the Act. The words "accident . . . arising out of . . . his employment"

indicate that any accident which occurred while going to

the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.

8. The other words of limitation in sub-section(8) of Section 2 is "in the course of his employment". The dictionary meaning of "in the course of" is "during (in the

course of time, as time goes by), while doing (The Concise Oxford Dictionary, New Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period or employment. If the employee's work shift begins at 4.30 P.M., any accident before that time will not be "in the course of his employment". The journey to the factory may have been undertaken for working at the factory at 4.30 P.M. But this journey was certainly not in course of employment. If employment begins from the moment the employee sets from his house for the factory,

then even if the employee stumbles and falls down at the

door-step of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided.

9. We were referred to a number of cases on this point. In the case of Regina v. National Insurance Commissioner.

Ex parte Michael, (1977) 1 Weekly Law Reports 109 the Court of Appeal in England had to construe a phrase

"caused by accident arising out of and in the course of his employment" in Section 5(1) of the National Insurance (Industrial Injuries) Act, 1965. Lord Denning M.R. started

his judgment with the observation:-

"So we come back, once again, to those all too familiar words 'arising out of and in the course of his employment'. They have been worth-to lawyers-a King's ransom. The

reason is because, although so simple, they have to be applied to facts which very infinitely. Quite often the

primary faces are not in dispute: or they are proved beyond question. But the inference from them is matter of law. And matters or law

can be taken higher. In the old days they went up to the House of Lords. Nowadays they have to be determined, not by the courts, but by the hierarchy of tribunals set up under the National Insurance Acts."

13. The meaning of the words "in the course of his employment" appearing in Section 3(1) of Workmen's Compensation Acts 1923. was examined by this Court in the case of Saurashtra Salt Manufacturing Co. v, Bai Valu Raja, AIR 1958 SC 881. There, the appellant, a salt manufacturing company, employed workmen both temporary and permanent. The salt works was situated near a creek opposite to the town of Porbandar. The salt works could be reached by at least two ways from the town, one an over land route nearly 6 to 7 miles long and

the other via a creek which had to be crossed by a boat. In

the evening of 12.6.1952, a boat carrying some of the workmen capsized due to bad weather and over-loading. As a result of this, some of the workmen were drowned. One of the questions that came up for consideration was

whether the accident had taken place in the course of the employment of the workers. S. Jafer Imam, J., speaking for the court, held "As a rule, the employment of a workman does not commence until he has reached the place of

employment and does not continue when he has left the place of employment, the journey to and from the place of

employment being excluded." After laying down the principle broadly, S. Jafer Imams, J., went or to observe that there might be some reasonable extension in both time

and place to this principle. A workman might be regarded as in the course of his employment even though he had not reached or had left his employer's premises in some special cases. The facts and circumstances of each case would

have to be examined very carefully in order to determine whether the accident arose out of and in the course of the

employment of a workman, keeping in view at all times this theory of notional extension. But, examining the facts of the case in particular, after noticing the fact that the workman used a boat, which was also used as public ferry

for which they had to pay the boatman's dues, S.Jafer Imam, J. observed:-

"It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any

other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the

theory of notion extension extends upon point D, the theory

cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the

journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased

workmen in this case were still in the course of their employment when they were crossing the creek between

points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the

appellant cannot be made liable."

This is precisely the case before us that while deceased Shahu was

proceeding to his place of work and on his way, met with an accident

because of dash given by the unknown vehicle. Thus it can not be

said that the accident arose out of and in the course of employment.

12. Perusal of the judgment of the Lower Court shows that the

Lower Court has relied upon the judgment in the matter of

Superintending Engineer, Mechanical-II T.N. Electricity Board,

Mettur Thermal Power Station, Salem Dist. Versus Sankupathy

(Tmt), 2004-LLN-4-1053, 2004-CTC-5-321, High Court of Madras,

relying on the observations of the Supreme Court in the matter of

B.E.S.T. Undertaking versus Ms.Agnes, AIR 1964 SC 193 : 1963-

II-LLJ-615, so also on the observations in the matter of Assistant

Executive Engineer, Bijapur Versus Shantavva, 2003-ACJ-0-79,

2001-ILR (Kar) -0-3031, wherein reliance was placed on the decision

of Shree Krishna Rice and Flour Mills, Samal-kot V.Challapalli

Chittemma, 1961 LLJ 260, wherein provisions u/s. 3 of The

Workmen's Compensation Act are discussed. At this juncture, I may

quote that the Supreme Court has discussed the ratio of their

decision in B.E.S.T. Undertaking versus Ms.Agnes, AIR 1964 SC 193 :

1963-II-LLJ-615, in para no.15 wherein it is observed that,

"This decision in our view, does not come to the assistance

of the employee's case. An employee of a Transport

Undertaking was travelling in a vehicle provided by the

employer. Having regard to the purpose for which he was

travelling and also having regard to the obligation on the

part of the employee to travel in the said buses as a part of

his duty, the Court came to the conclusion that this journey

was in the course of his employment because the entire fleet

of buses formed the premises within which he worked."

Thus the learned Trial Court has incorrectly relied on this judgment.

13. Further reliance is placed by the respondents in the matter of

Parle Products Limited versus Subit Mukherjee, 2001-LLJ-1-964,

delivered by the Division Bench of the High Court at Calcutta. The

facts before the Division Bench of the High Court at Calcutta, as

discussed in para no.2, are clearly different from the facts of the

present case. As in the said case, the claimant/respondent was

working as a Territory Supervisor and was looking after the sales of

the products of the appellant company. The claimant/respondent

was directed to attend a conference at Puri and the said conference

was organized by the appellant complaint/the employer. The

claimant alongwith his other colleagues left Calcutta to attend the

said conference and while journey, he was assaulted and thrown out

of the railway compartment, as a result whereof he sustained

multiple injuries. Thus in the said case, the employee was travelling

in the railway in the course of his employment to attend the

conference. Thus the observations of the High Court of Calcutta

differ from the facts of the case in the appeal, hence not applicable.

14. Considering the overall effect of the judgments cited supra, and

by way of judicial discipline, the judgment and ratio delivered by the

Supreme Court is binding on the sub-ordinate courts. As observed

by the Full Bench of the Supreme Court in the matter of Regional

Director versus Francis De Costa (cited supra), that mere road

accident, while the employee on his way to his employment, can not

be said to have its origin in his employment in the factory. From the

admitted facts, it is clear that the deceased met with a road accident

due to dash given by the unknown vehicle, while he was on his way

to his employment, thus can not be said to its origin in his

employment in the said factory. Considering the overall discussion,

the finding to be recorded on the point for consideration in the

negative.

15. As the finding is recorded on the point for consideration in the

negative, then it is but natural that the Insurance Company is not

liable to pay the compensation as awarded by the court below. In

the substance, appeal succeeds to the extent of present appellant.

16. Accordingly, appeal is allowed. The impugned order passed by

the Lower Court against the appellant Insurance Company, in terms

of prayer clause 2, is hereby quashed and set aside. So also the

directions issued against the respondent no.2 to pay the amount of

compensation within 1 month from the date of order impugned, is

also quashed and set aside. Accordingly appeal succeeds and

stands disposed of accordingly.

(A.V.POTDAR, J.) khs/NOV.2011/fa2015-11