Telangana High Court

Sri J. Mallikarjun vs The Managing Director on 9 December, 2022

Bench: Sambasivarao Naidu

      HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

                        C.M.A.NO.218 of 2022
JUDGMENT :

This Civil Miscellaneous Appeal has been filed by the

appellant, who is applicant in E.C.No.3 of 2015 on the file of

Commissioner for Employees Compensation and Deputy

Commissioner of Labour, Warangal. The appellant has filed this

appeal under Section 30 of the Workmen's Compensation Act,

1923 against the Judgment of the learned Deputy Commissioner,

whereunder the application filed by the appellant herein for

compensation on the ground of injuries caused to him was

dismissed. The petitioner sought for setting aside the said order.

2. As per the grounds on which the present appeal is

filed, it was specifically pleaded that the learned Commissioner

committed an error by observing that the accident and

consequential disability of the appellant herein was not occurred

out of and in the course of employment with the

respondents/opposite parties, thereby the findings of the learned

Commissioner was illegal, contrary to material evidence on record.

The learned Commissioner failed to appreciate the oral and

documentary evidence which is available on record while passing

the orders. The appellant was not given an opportunity to bring 2 SSRN,J C.M.A. No.218 of 2022

medical evidence to prove the disability and loss of earning

capacity @ 58% and infact the learned Commissioner is vested

with the powers of calling for medical examination, in case of

non-schedule injury for assessing the loss of earning capacity. But

the learned Commissioner committed an error by holding that the

appellant is not entitled for compensation inspite of production of

disability certificate vide Ex.A9, which was issued by Medical

Board.

3. The appellant further pleaded that the opposite party

with whom the appellant was in employment, did not dispute the

said employment but the learned Commissioner grossly erred in

observing that the accident was not occurred in the course of

employment. The opposite party has admitted the employment of

appellant, monthly salary of Rs.12,000/- and also the accident

during the course of employment, but the learned Commissioner

did not consider the material evidence and Exs.A2 to A8.

4. The appellant has claimed that the workshop in which

he was working at Mulugu road is at Industrial Estate, Warangal,

the distance between the work place and his house is 12 kms, it

will take 30 minutes to reach the work place. The accident in

which he received injuries occurred while the appellant was

proceeding to attend the duties, therefore, the learned 3 SSRN,J C.M.A. No.218 of 2022

Commissioner ought to have observed that the appellant herein is

entitled to compensation under Workmen's Compensation Act but

he came to an erroneous conclusion and dismissed the application,

thereby he sought for setting aside the order and for grant of

compensation from the opposite parties.

5. As could be seen from the record placed before this

Court, the appellant has filed E.C.No.3 of 2015 against the

Managing Director, Green Honda Workshop and Service Manager,

Green Honda Workshop, Warangal and sought for compensation of

Rs.6,43,204/-. According to his application before the

Commissioner, it was specifically pleaded that the appellant herein

was working as Manager, Body shop under opposite parties No.1

and 2. His services were utilized even during the Labour Holidays

and Sundays. On 29-03-2013, when the appellant was going to

attend the job on his Hero Honda motor-cycle, there was a road

accident at about 8.30 a.m., at Rajarajeshwari Temple near MGM

Hospital, Warangal. The police have informed the second opposite

party i.e., respondent No.2 herein about the accident and

hospitalization of the appellant. But respondent No.2 did not visit

him while he was at hospital. The appellant was treated in

Guardian Hospital, Mulugu Road, Warangal, where he was

operated for the fracture of his right leg, and he suffered grievous 4 SSRN,J C.M.A. No.218 of 2022

injuries. Therefore, he has filed E.C.No.3 of 2015 for

compensation on the ground that he being a workman and while

employment with the respondents No.1 and 2, received injuries.

However, the application filed by the appellant was dismissed by

the learned Commissioner.

6. Heard.

7. Now the point for consideration is :

Whether the alleged accident in which appellant herein received injuries was occurred while the appellant herein was in employment and during the said employment with the respondents No.1 and 2, thereby the respondents are liable to pay compensation to the appellant ?

8. As per the order impugned in the present appeal, it

appears that both the respondents/opposite parties appeared

before the learned Commissioner and filed a common counter

stating that the appellant was only on probation, he worked for

108 days from 10-12-2012 to 29-03-2013. The workshop of the

respondent No.2 was established during November, 2012. The

appellant was appointed as Body Shop Incharge on 10-12-2012

but he was not Body shop Manager as claimed in the application.

His monthly salary was Rs.12,000/- but not Rs.16,000/-. The

appellant can reach the work premises within 10 minutes,

therefore, he might have been engaged in some other personal

work at the time of accident. They have also claimed that when 5 SSRN,J C.M.A. No.218 of 2022

they tried to give some financial help, the appellant refused to

receive it. In view of his irregular attendance, he was paid

Rs.11,352/- in December, Rs.11,877/- in January 2013,

Rs.11,749/- for February 2013 and Rs.10,900/- for March, 2013.

After the above referred accident, the appellant joined Select

Motors and worked there from 01-07-2014 to 05-12-2014 after

resigning the said job only, he has approached the learned

Commissioner for compensation with a false motive.

9. During enquiry before the Commissioner, the appellant

alone was examined as AW.1 and he has marked Exs.A1 to A9.

The opposite parties have examined RW.1 and marked Exs.B1 to

B13. The learned Commissioner did not accept the claim of

appellant herein and dismissed his application vide order dated

28-01-2020.

10. The main grievance of the appellant herein was even

though he has received injuries during the course of his

employment as Body shop Manager with the respondents No.1

and 2, though he was able to prove the accident and injuries, he

was not granted an appropriate compensation. In order to prove

his claim, the appellant has to establish that he worked as Body

shop Manager with respondents No.1 and 2/opposite parties No.1

and 2. He has to prove that by the time of accident, he was on 6 SSRN,J C.M.A. No.218 of 2022

duty i.e., the accident occurred during the course of his

employment with the respondents. The respondents even though

did not deny the accident specifically pleaded that the appellant

was not Body shop Manager but he was only incharge on

temporary basis on adhoc pay of Rs.12,000/- per month in view of

his failure to attend the required working days. He could not

receive the complete salary during December, 2012 to February,

2013 and they have also pleaded that the appellant can reach the

work shop within 10 minutes from the place of his residence. In

the light of his own claim that the accident occurred at 8.15 a.m.,

the respondents have claimed that by the time of accident, he was

not on employment and must have been on his private affairs.

Except the oral evidence and documents which he prepared after

the accident, the appellant could not place any material in support

of the claim that there was an accident in which he received

injuries and the said accident occurred while he was on duty i.e.,

the accident in the course of his employment. Section 3 of

Workmen's Compensation Act reads as follows :

Section 3 in The Workmen's Compensation Act, 1923

3. Employer's liability for compensation.-

(1) 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 7 SSRN,J C.M.A. No.218 of 2022

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 workman for a period exceeding 3 three] days;

(b) in respect of any injury, not resulting in death, 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 wilful 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. 5 5

(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been

1. Ins. by the A. O. 1937. 2. Subs., ibid., for" G. G. in C.". 3. Subs. by Act 8 of 1959, s. 3, for" seven" (w. e. f. 1- 6- 1959 ). 4. Subs. by Act 15 of 1933, s. 3, for" injury to a workman resulting from". 5. The word" or" and cl. (c) rep. by Act 5 of 1929, s. 2. 6. Subs. by Act 8 of 1959, s. 3, for sub- sections (2) and (3) (w. e. f. 1- 6- 1959 ).

employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment: 1 Provided that if it is proved,--

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                                                            C.M.A. No.218 of 2022


(a)    that a workman whilst in the service of one or more

employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub- section for that employment, and

(b) that the disease has arisen out of and in the course of the employment; the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section: Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub- section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.

(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment

1. Ins. by Act 64 of 1962, s. 3 (w. e. f. 1- 2- 1963 ). 2. Subs. by s. 3, ibid., for sub- section (2A) (w. e. f. 1- 2- 1963 ).

was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.]

(3) The State Government in the case of employments specified in Part A and Part B of Schedule III, and the Central Government in the case of employments specified in Part C of that Schedule, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub- section (2) shall apply 1 as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.

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(4) Save as provided by 2 sub- sections (2), (2A)] and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is 3 directly attributable to a specific injury by accident arising out of and in the course of his employment.

(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury--

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or

(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.

11. Therefore, in view of Section 3(1) of Workmen's

Compensation Act, if a physical injury is caused to a workman, in

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

employer was liable to pay compensation in accordance with the

provisions of the Act. Therefore, unless the appellant is able to

establish that the alleged personal injury was caused in an

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

employer need not pay any compensation.

12. As per the order impugned in the present appeal, the

learned Commissioner placed reliance on various Judgments and

concluded that the appellant herein was unable to prove the above

said aspect. Admittedly, it was his case, the accident occurred at

8.15 a.m., he did not specify the office time during which he 10 SSRN,J C.M.A. No.218 of 2022

supposed to attend the office. It is not the case of appellant that

he has to attend the office even before 9.00 a.m., Another

important aspect in this case is the respondents have claimed that

the date on which the accident occurred being Good Friday was not

a working day. Therefore, there is no need for the appellant to

attend the compensation. The appellant did not place any

evidence in support of his claim that he was proceeding to the

workshop inspite of the fact that the above day was a Public

Holiday.

13. The learned Commissioner placed reliance on a

Judgment between "Regional Director, E.S.I. Corporation and

another vs. Francis De Costa and another"1, wherein the

Hon'ble Apex Court was pleased to observe as follows :

"That the first respondent has suffered a personal injury is not in dispute. The only dispute is whether the injury will amount to "employment injury" within the meaning of Section 2(8) so as to enable the respondent to claim benefit under the Act. The definition given to the "employment injury" in sub-Section (8) of Section 2 envisages a personal injury to an employee caused by an accident or an occupational disease "arising out of and in the course of employment". Therefore, the employee, in order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in the course of his employment. Both the conditions will have to be fulfilled before he could claim any benefit under the Act. It does not appear that the injury suffered by the employee in the instant case arose in any way out of his employment. The injury was sustained while the employee was on his way to the factory where he was employed. The accident took place one kilometer

(1996) 6 SCC 1 11 SSRN,J C.M.A. No.218 of 2022

away from the place of employment. Unless it can be said that his employment began as soon as he set out for the factory from his home, it cannot be said that the injury was caused by an accident "arising out of ...his employment". A road accident may happen anywhere at any time. But such accident cannot be said to have arisen out of employment, unless it can be shown that the employee was doing something incident to his employment".

14. In another Judgment between "Sourashtra Salt

Manufacturing Co. Ltd vs. Bai Value Raja"2, the claim of the

workman that he received injuries while he was at a distance of

1 k.m., from the factory was not accepted by the Court. In the

present case, absolutely there is no evidence to conclude that the

appellant herein was proceeding to his office and the accident was

occurred arising out of his employment with the respondents. The

appellant did not try to explain the necessity for him to attend the

office on a Public Holiday. Hence, the learned Commissioner

rightly dismissed the appeal, therefore, there is nothing to

interfere with the said findings and appeal is liable to be dismissed.

15. In the result, appeal is dismissed.