Kumaon Mandal Vikas Nigam Ltd. vs Smt. Kalpana Joshi
2021 Latest Caselaw 1042 UK

                                              Reserved
     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                     Appeal From Order No. 228 of 2008


Kumaon Mandal Vikas Nigam Ltd.,                                ......... Appellant

                                       Vs.
Smt. Kalpana Joshi                                             .......Respondent



Present: Mr. Sandeep Kothari, Advocate for the appellant.
         Mr. Anil Kumar Joshi, Advocate for the respondent.

                                 JUDGMENT

Hon'ble Ravindra Maithani, J.

Instant appeal is preferred against the judgment and order dated 17.03.2008, passed in Workmen Compensation Case No. 12 of 2005, Smt. Kalpana Joshi Vs. Managing Director, Kumaun Mandal Vikas Nigam Ltd. (for short "the case") by the Workmen Compensation Commissioner, Haldwani, District Nainital. By the impugned order, the appellant has been directed to pay Rs.1,67,781/- as compensation, which includes interest as well.

2. The facts necessary for decision of the appeal, briefly stated, are as hereunder:-

3. The husband of the respondent Late Shankar Dutt Joshi was working as an Attendant in a Tourist Rest House (for short "TRH") run by the appellant at Purnagiri, District Champawat. On 27.09.1990, in a fight, he was stabbed and killed by a Chandra Shekhar, when he was in the TRH. The respondent claimed compensation on the ground that at the time of death, the deceased was in employment. In the case, the appellant also filed his objections and in para 1 of it, admitted that Shankar Dutt Joshi was attacked during the course of his employment, due to which, he died. The parties adduced evidence. After hearing the parties, by the impugned judgment and order, the appellant

has been directed to pay a compensation, as stated, hereinbefore. Aggrieved by it, the appellant in is appeal.

4. Heard learned counsel for the parties and perused the record.

5. Instant appeal is filed under Section 30 of the Workmen Compensation Act, 1923 (for short "the Act"). According to the proviso to Section 30 of the Act, "no appeal shall lie against any order unless a substantial question of law is involved in the appeal........".

6. No substantial question of law has been proposed in the memo of appeal. The appeal is pending since 2008, but substantial question of law has never been framed. In view of the arguments made, which will be discussed a little later, the following substantial question of law is involved in the case:-

"Whether the deceased contributed in happening of an event, which resulted in his death? and if so, is the claim for compensation not maintainable under the Act?

7. Learned counsel for the appellant would raise the following arguments.

(i) At the time of death, the deceased was in inebriated condition and was gambling, which resulted in a fight and he was stabbed. It is argued that the act by which the deceased was killed is attributable to the deceased himself, therefore, compensation under the Act may not be awarded. It is also argued that under these circumstances, it cannot be said that the deceased was in his employment.

(ii) Interest should have been awarded from the date of presentation of claim petition and not from the date of accident.

8. Learned counsel for the appellant initially also raised limitation issue arguing that with regard to the incident of 1990, the claim petition under the Act was filed in the year 2005, which is barred by limitation. But, this point was subsequently not pressed in view of the

arguments made on behalf of the respondent that in the case, after hearing both the parties, on 03.02.2005, the delay in filing the claim petition had already been condoned.

9. On behalf of the respondent, it is argued that the compensation under the Act becomes due from the date of accident and interest has rightly been awarded; the plea which is now being taken at the time of argument, has never been taken by the appellant; in fact, the appellant in his written statement has admitted that the deceased died during the course of employment and it is their admission. Therefore, it is argued that there is no merit in the appeal and it deserves to be dismissed.

10. In support of his contention, learned counsel for the respondents placed reliance on the principles of law, as laid down in the cases of Pradeep Narain Singh Deo Vs. Srinivas Sabata and another, (1976) 1 SCC 289, and Saberabibi Yakubbhai Shaikh and others Vs. National Insurance Company Limited and others, (2014) 2 SCC 298.

11. In the case of Pratap Narain Singh Deo (supra) while interpreting the provision of the Act, it was held that "the employer therefore became liable to pay the compensation as soon as the aforesaid personal injury caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is there futile to contend that the compensation did not fall due until after the commissioner's order dated May, 1969, under Section 19."

12. In the case of Saberabibi Yakubbhai Shaikh (supra), the Hon'ble Supreme Court upheld the principles of law, as laid down in the case of Pratap Narain Singh Deo (supra) and also held that the principles as laid down in the case of National Insurance Co. Ltd Vs. Mabasir Ahmed, (2007) 2 SCC 349 and Oriental Insurance Co. Ltd. Vs. Mohd. Nasir (2009) 6 SCC 280, insofar as, they took a contrary view to the decision in the case of Pradeep Narain Singh Deo (supra) and Kerala SEB

vs. Valsala K, (1999) 8 SCC 254, do not express the correct view and do not make binding precedents.

13. The Act is a beneficial legislation. It provides compensation in case of death of the workman during the course of his employment. In the case of Mackinnon Machenzie and Co. (p) Ltd. Vs. Ibrahim Mahmmed Issak, 1969 (2) SCC 607, the Hon'ble Supreme Court discussed the words "in the course of employment" and observed as hereunder:-

"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. Highley1 Lord Sumner laid down the following test for determining whether an accident "arose out of the employment":

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this : Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yes, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the workman was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury."

1. 1909 (2) KB 41.

14. In the case Poonam Devi and others Vs. Oriental Insurance Company Limited, (2020) 4 SCC 55, the Hon'ble Supreme Court, inter alia, observed that the provisions of the Act have to be interpreted in a manner, to advance the purpose of legislation, rather than to stultify it.

15. On behalf of the appellant, reference has been made to the FIR, statements of the witnesses and the judgment relating to the death of the deceased. The FIR which has been filed as Annexure 3 does not reveal that deceased contributed in his death. It simply says that there was a quarrel amongst employees and deceased was attacked by Chandra Shekhar. Similarly, a statement of Ashok Kumar is filed as Annexure 4 in the appeal. It also does not reveal that in any manner, the deceased was responsible for his death. The judgment relating to the death of deceased passed in Sessions Trial No. 10 of 1991, in court of Sessions Judge, Pithoragarh has been filed as Annexure 6. The opinion has been given in para 28 of it. It also nowhere records any finding that the deceased provocated the assailant to cause his death or contributed in any manner to cause his death. There is no evidence in support of the argument raised on behalf of the appellant that the deceased in an inebriated condition contributed to his death.

16. The deceased was at TRH during the course of his employment. Whatever happened, did happen during the course of his employment. He did not contribute to his death. He was killed by an assailant. Therefore, this Court is of the view that the appellant did not contribute in happening of the event, which resulted in his death. The substantial question is answered accordingly.

17. An argument has been made with regard to the interest. The compensation becomes due from the date of incident which is 28.09.1990. Therefore, the award of interest as made by the Commissioner is also in accordance with law.

18. In view of the above, there is no merit in this appeal and it deserves to be dismissed.

19. The appeal is dismissed.

(Ravindra Maithani, J.) 22.03.2021

Jitendra