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2010 DIGILAW 1197 (AP)

United India Insurance v. E. Kistamma

2010-11-29

SAMUDRALA GOVINDARAJULU

body2010
Judgment : 1. The insurer, namely, United India Insurance Company Limited questioning award, dated 16.07.2009, passed by the Commissioner for Workmen’s Compensation cum Assistant Commissioner of Labour-I, Hyderabad, in W.C.No.16 of 2007, dated 16.07.2009, filed this appeal. By the impugned award, the Commissioner awarded total compensation of Rs.4,17,586/- to the claimants/respondents 1 and 2 for death of the deceased, who died during the course of employment of the third respondent as driver in his rice mill. There is no dispute regarding factum of the accident in which the deceased died. There is also no dispute that the deceased was in employment of the third respondent and the accident took place while the deceased was in employment as driver in rice mill of the third respondent. The appellant/insurance company contends that the accident is not covered by the insurance policy issued to the third respondent. Brief facts resulting in death of the deceased may be noticed. Electricity transformer was installed within the compound of the rice mill. There was failure of electricity supply to the rice mill due to burning of one fuse in the transformer. Therefore, the deceased attempted to put fuse wire and during that attempt, the deceased suffered electric shock, fell down from the transformer and died on the spot. According to the claimants, owner of the rice mill instructed the deceased to install fuse wire to the transformer located within the rice mill premises or rice mill compound. The Commissioner awarded compensation amount as against the third respondent and also the appellant. It is contended by the appellant’s counsel that replacing fuse wire in the transformer is outside the duty of driver of rice mill and that it is not authorized by law and that therefore it cannot be said that the accident occurred during the course of employment of the deceased as driver of rice mill. On the other hand, it is contended by the counsel for respondents 1 and 2/claimants that transformer is located within the compound of the rice mill and that the deceased at the time of accident was performing his duty on the instructions of his employer/third respondent and that therefore the insurance company cannot avoid its liability to pay compensation in this case. The appellant’s counsel pointed out condition No.3 in the insurance policy, which is to the following effect: “The insured shall take reasonable precaution to prevent accident and shall comply with all statutory obligations.” The insurance policy covers two semi-skilled labour. Driver of rice mill is undoubtedly a semi-skilled labour insofar as his duties as driver in the rice mill are concerned. It is contended by the appellant’s counsel that driver of rice mill would be semi-skilled worker in case he was operating the rice mill and machinery installed in the rice milling process, but he is no semi-skilled worker in respect of electrical installations like transformer located in the rice mill compound. He placed reliance on MALLIKARJUNA G. HIREMATH v. BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LIMITED ( AIR 2009 SC 2019 ) of the Supreme Court and contended that the accident must arise both out of and in the course of employment and that meddling with electrical installation like transformer by way of replacing fuse wire to the transformer is not within the course of employment of the deceased. No doubt, without electricity, rice mill cannot be run. As per evidence of A.W.2, who is a co-worker, in case electrical lineman has to come for replacing the fuse in the transformer, he has to come from Achampet, which is about 14 kilometers away from the rice mill premises. MALLIKARJUNA G. HIREMATH was rendered by the Supreme Court after quoting its earlier pronouncement in MACKINNON MACKENZIE AND COMPANY PRIVATE LIMITED v. IBRAHIM MAHOMMAD ISSAK ( 1969 (2) SCC 607 ), wherein it was held: “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 employment” mean “in the course of the work which the wokman 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. 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.” It has to be seen, whether action of the deceased in replacing the fuse to the transformer is incidental to the work for which he was employed. As pointed out earlier, without electricity supply, the mill cannot be run. Therefore, replacing fuse wire in case of burning of fuse wire is incidental to the work of the deceased as driver of the rice mill. The next question is whether the consumer of electricity or his worker can replace fuse wire to the electrical transformer located within the rice mill compound. At this stage, a reference to Indian Electricity Rules, 1956 (in short, the Rules) becomes relevant. Rules 45(1) and 50(3) of the Rules set out right of the consumer and prohibition imposed on the consumer with regard to interfering with electrical installations for smooth supply of electricity to the consumer. Rule 45(1) reads as follows: “No electrical installation work, including additions, alterations, repairs and adjustments to existing installations, except such replacement of lamps, fans, fuses, switches, low voltage domestic appliances and fittings as in no way alters its capacity or character, shall be carried out upon the premises of or on behalf of any consumer, supplier, owner or occupier, for the purpose of supply to such consumer, owner or occupier except by an electrical contractor licensed in this behalf by the State Government and under the direct supervision of a person holding a certificate of competency and by a person holding a permit issued or recognised by the State Government.” Electrical installation is defined in Rule 2(y) as follows: “Installation” means any composite electrical unit used for the purpose of generating, transforming, transmitting, converting, distributing or utilizing energy. Electrical installation includes a transformer. Rule 45(1) makes an exception to the general rule that no electrical installation work including additions, alterations, repairs and adjustments to the existing installations shall be carried out except by an electrical contractor licensed in this behalf by the State Government and under the direct supervision of a person holding a certificate of competency and by a person holding a permit issued or recognised by the State Government. Replacement of lamps, fans, fuses, switches, low-voltage domestic appliances and fittings, which in no way alters its capacity or character, can be carried out upon the premises of any consumer, supplier, owner or occupier for the purpose of supply. It is contended by the counsel for respondents 1 and 2 that replacing a fuse in the transformer by the consumer or owner of the premises is permissible by the Rules. On the other hand, Rule 50(3) reads as follows: “Every consumer shall use all reasonable means to ensure that where energy is supplied by a supplier no person other than the supplier shall interfere with the service lines and apparatus placed by the supplier on the premises of the consumer.” Under this Rule, duty is cast on the consumer to see that no person other than the supplier shall interfere with the service lines and apparatus placed by the supplier on the premises of the consumer. A transformer installed in the rice mill premises of the third respondent is a service apparatus under Sub-Rule (3) of Rule 50. Therefore, it is contended by the appellant’s counsel that neither the rice mill owner nor its worker, who is the deceased, is entitled to meddle with the service line or service apparatus like transformer located within the premises of the rice mill and that if it was done, it amounts to violation of Rule 50(3). I am of the opinion that permissible repairs or adjustments or alterations under Rule 45(1) in respect of lamps, fans, fuses, switches, low-voltage domestic appliances and fittings are within the consumer’s premises and attached to supply line of the consumer apart from service line of the supplier. I am of the opinion that permissible repairs or adjustments or alterations under Rule 45(1) in respect of lamps, fans, fuses, switches, low-voltage domestic appliances and fittings are within the consumer’s premises and attached to supply line of the consumer apart from service line of the supplier. On a combined reading of Rules 45(1) and 50(3) of the Rules, it emerges that the consumer can either undertake himself or permit to undertake repairs or adjustments or additions to installations which are anterior to the electricity meter and such repairs etc., are not permissible in respect of installations or apparatus which are posterior to the electricity meter. The consumer is permitted to do repairs etc., in respect of installations beyond the meter and not behind the meter. In this case, the deceased tried to do repair work by way of applying electricity fuse to the transformer which is a service installation and which is impermissible under Rule 50(3) of the Rules. Therefore, this Court is of the opinion that there is violation of condition No.3 of the insurance policy in this case. In that view of the matter, the appellant cannot be mulcted with liability to pay compensation to the claimants or to reimburse compensation or indemnify the insured who paid compensation to the claimants. In the result, the appeal is allowed setting aside the award of the Commissioner insofar as liability of the appellant/insurance company is concerned. No costs.