Madhya Pradesh High Court
Hasina Bee vs General Manager on 15 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 15th OF NOVEMBER, 2022
MISCELLANEOUS APPEAL No. 497 of 2011
BETWEEN:-
HASINA BEE W/O LATE BABU ALI, AGED ABOUT
43 YEARS, BIJURI, MINES COLONY, QUARTER
NO. 674, DOUBLE STORY, BIJURI, P.S. BIJURI,
TAHSIL KOTMA, DISTRICT ANUPPUR (M.P.)
.....APPELLANT
(BY SHRI ANIL DWIVEDI - ADVOCATE)
AND
1. GENERAL MANAGER SOUTH EASTERN COAL
FIELD LTD. , HASDEO AREA, POST SOUTH
JHAGRAKHAD, HASDEO AREA, TEHSIL KOTMA,
DISTRICT ANUPPUR (M.P.)
2. CHIEF PERSONNEL MANAGER, HASDEO AREA,
POLICE STATION BIJURI, DISTRICT ANUPPUR
(M.P.)
.....RESPONDENTS
This miscellaneous appeal coming on for hearing this day, th e court
passed the following:
ORDER
None for the respondents though names of the counsel are mentioned in
the cause list.
2. This appeal is pending since 2011. It is taken up on merits at the
instance of Shri Anil Dwivedi, learned counsel for the appellant.
Signature Not Verified
SAN
3. This appeal under Section 30 of the Workmen Compensation Act, 1923
Digitally signed by PUSHPENDRA PATEL
Date: 2022.11.16 18:38:27 IST
is filed by the claimant being aggrieved of award dated 20.10.2010 passed by
the learned Commissioner under the Workmen Compensation Act/Labour
Court, Shahdol in case No.B-53/W.C.Act/09 (fatal) (Haseena Bee Vs. General
Manager, S.E.C.L. and another) on the ground that deceased Babu Ali was
working as a driver on the truck. While coming back from Korba to Bijuri, he
had taken a short halt at Kotmi on 15.04.2003. While taking bath in a reservoir,
he drowned and died.
4. It is submitted by Shri Anil Dwivedi, learned counsel for the appellant
that the distance to be covered from Korba to Bijuri takes about 3 days time.
Onus was on the employer to have provided appropriate facilities for answering
the call of nature, taking bath, etc. and in case deceased Babu Ali decided to
take a bath in a pond and drowned, then that has to be construed to be death
originating out of and in the course of the employment.
5. It is further submitted that learned Tribunal has omitted to appreciate the
definition of accident and also the meaning and import of 'arising out of and in
the course of employment' and, therefore, impugned award be set aside, claim
petition be allowed and appropriate compensation be granted in favour of the
claimant.
6. The facts which have come on record and which are not disputed are
that deceased Babu Ali on 15.04.2003 at about 10.30 a.m. had taken a halt and
had entered into a dam (water reservoir) for taking bath. He went deep inside
and due to lack of stamina, could not sustain his return swim and died due to
drowning. This aspect has been considered by the Supreme Court in case of
Malikarjuna G. Hiremath Vs. Branch Manager, The Oriental Insurance
Company Ltd. and another, (2009) 13 SCC 405 , wherein Hon'ble Supreme
Signature Not Verified
SAN
Court has held that employer's liability for compensation in terms of Section
Digitally signed by PUSHPENDRA PATEL
Date: 2022.11.16 18:38:27 IST
3(1) of the Workmen Compensation Act, will arise if personal injury is caused
to a workman 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. However, 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 workman 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 workman having been at the time thereof under the
influence of drink or drugs, or
(ii) the willful disobedience of the workman to an order
expressly given, or to a rule expressly framed, for the
purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workman of any
safety guard or other device which he knew to have been
provided for the purpose of securing the safety of workmen."
7. Thereafter, placing reliance on the judgment of the Supreme Court in
ESI Corporation Vs. Francis De Costa (1996 (6) SCC 1) which has
referred to the decision of Lord Wright in Dover Navigation Company Vs.
Isabella Craig (1940 AC 190) wherein it was held: (All ER p.563) :-
''Nothing could be simpler than the words 'arising out of and in the
course of the employment'. It is clear that there are two conditions
to be fulfilled. What arises `in the course' of the employment is to
be distinguished from what arises 'out of the employment'. The
former words relate to time conditioned by reference to the man's
service, the latter to causality. Not every accident which occurs to
a man during the time when he is on his employment--that is,
directly or indirectly engaged on what he is employed to do--gives
a claim to compensation, unless it also arises out of the
Signature Not Verified
SAN employment. Hence the section imports a distinction which it does
not define. The language is simple and unqualified.''
Digitally signed by PUSHPENDRA PATEL
Date: 2022.11.16 18:38:27 IST
8. It is held that taking bath may be part of the action arising out of and in
the course of employment but, entering into a dam without following safety
instructions cannot be said to be an accident arising out of and in the course of
the employment and, therefore, in view of the said judgments of the Supreme
Court, I am of the opinion that there is no illegality in the impugned award,
calling for interference.
9. Appeal fails and is dismissed.
10. Record of the court below be sent back.
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2022.11.16 18:38:27 IST
