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2012 DIGILAW 585 (GAU)

Sankar Kal v. Sunil Kumar Saha

2012-05-10

SWAPAN CHANDRA DAS

body2012
JUDGMENT Swapan Chandra Das, J. 1. The appellant named above, set the law in motion presenting a petition before the Commissioner, Employee's Compensation, West Tripura, Agartala, for granting him adequate compensation for the death of his brother Bhopal Kal, who died on the intervening night of 10.03.2000 and 11.03.2000, arising out of and in the course of his employment, while working as Assistant-cum-Cleaner of vehicle No. TR-01-1805 (Truck) belonged to respondent No.1. One Narayan Kal, father of the appellant-petitioner and the deceased Bhola Kal, was also a petitioner but he died during pendency of the petition before the Commissioner, and therefore, his name was struck off. Heard learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. P.K. Pal for the appellant-petitioner and learned counsel, Mr. P. Gautam for respondent No.2, the National Insurance Company Limited. Respondent No.1, has chosen to remain absent. 2. Brief Facts:- (i) It was, inter alia, stated by the appellant-petitioner in the claim petition that his brother Bhola Kal was working as Assistant-cum-Cleaner of vehicle No. TR-01-1805 (Truck), employed by respondent No.1 and on 10.03.2000 the said vehicle, carrying loads, was on way to Agartala from Guwahati and at about 11 PM, it reached Bagpasa under Dharmanagar P.S., North Tripura District and the vehicle was parked there. The driver of the vehicle went to sleep in a nearby hotel and Bhola Kal remained in the vehicle and was supposed to sleep in the cabin of the vehicle. On the following morning, the driver found Bhola Kal lying dead inside the vehicle and he immediately informed the incident to Dharmanagar P.S. in writing and Dharmanagar P.S. U.D. Case No.2(3)/2000 u/s 174of Cr. P.C. was registered. It was further stated that the deceased Bhola Kal performed strenuous job in cleaning and loading the vehicle in full day and due to heavy exhaustion he died because of heart failure. He was aged 27 years and used to get Rs. 2,050/- (rupees two thousand and fifty) per month as wages besides TA, DA. It was further stated that the deceased left behind the petitioner as his only legal representative, and therefore, claimed adequate compensation. He was aged 27 years and used to get Rs. 2,050/- (rupees two thousand and fifty) per month as wages besides TA, DA. It was further stated that the deceased left behind the petitioner as his only legal representative, and therefore, claimed adequate compensation. (ii) Respondent No.1, the owner of the alleged vehicle, submitted written statement admitting the fact that the deceased was employed as a Helper-cum-Cleaner five months before his death and further stated that the deceased died due to drinking excessive quantity of alcohol as reported by police and that there was no accident at all in the course of employment, and therefore, claim of compensation by the brother of the deceased was not entertainable. Respondent No.1 further stated that the vehicle was insured with the National Insurance Company, covering the risk of driver and the assistant on the date of the accident, and so liability, if any, should be borne by the Insurance Company. (iii) Respondent No.2, National Insurance Company also submitted written statement, denying the averments made in the claim petition and further stated that the statement that the deceased died as a result of heavy exhaustion for the strenuous job, etc. were all false and that he died because of consuming excessive quantity of ethyl alcohol, which was unconnected with his employment and use of the vehicle, and therefore, the National Insurance Company was not responsible for making payment of any compensation. (iv) In course of trial, the appellant-petitioner examined himself as PW.1 and in support of his case, submitted documents, namely, School Certificate, Salary Certificate, Death Certificate, Certificate of FIR, copy of Demand Notice with Postal receipts and Post-mortem Certificate, etc., and those were marked as Exbt.1 series. Respondents adduced no oral or documentary evidence. (v) The Tribunal, considering the evidence on record and considering the Post-mortem report submitted by the petitioner, held that the deceased died due to consumption of excessive quantity of ethyl alcohol and such death was not incidental to his nature of work, and therefore, refused to grant compensation under the Workmen's Compensation Act, and accordingly, dismissed the petition. (vi) Being aggrieved, the appellant-petitioner preferred the present appeal claiming compensation. 3. Facts admitted/undisputed: (i) Appellant-petitioner is the brother of deceased employee Bhola Kal. (ii) Deceased Bhola Kal was an employee working as an Assistant-cum-Cleaner of vehicle No. TR-01-1805(Truck) under respondent No.1. (vi) Being aggrieved, the appellant-petitioner preferred the present appeal claiming compensation. 3. Facts admitted/undisputed: (i) Appellant-petitioner is the brother of deceased employee Bhola Kal. (ii) Deceased Bhola Kal was an employee working as an Assistant-cum-Cleaner of vehicle No. TR-01-1805(Truck) under respondent No.1. (iii) On the intervening night of 10.03.2000 and 11.03.2000 at about 11 PM, the vehicle, carrying goods from Guwahati to Agartala, reached at Bagpasa and parked there for the night. Driver of the vehicle went to sleep in a hotel and the Assistant-cum-Cleaner Bhola Kal remained in the vehicle and was supposed to sleep in the cabin of the vehicle. (iv) On the following morning (11.03.2000), driver of the vehicle found Bhola Kal lying dead in the cabin of the vehicle. (v) Driver (Nitai Das) reported the incident to U.D. Case No.2 (3)/2000 u/s 174 of Cr. P.C. was registered and investigation was taken up. (vi) Postmortem examination was done at Dharmanagar Sub-Divisional Hospital and copy of the P.M. report submitted in the case and marked as one of the items of Exbt.1 series. (vii) The vehicle was insured with the National Insurance Company (respondent No.2), covering the risk of driver and Helper on the date of the incident. 4. Point raised in course of argument: (i) Learned senior counsel, Mr. Deb, in course of argument, has submitted that Section 3 of the Employee's Compensation Act, 1923 entitles to compensation for injuries arising out of and in course of employment. It postulates that two propositions to be satisfied:- (i) arising out of; and (ii) in course of employment. There is no dispute that death took place in course of employment. On the question of application of proviso (b) to sub-section (1) of Section 3 of the Employee's Compensation Act, 1923, learned counsel has submitted that the liability of the employer shall not be excluded in respect of any injury resulting to death. The said proviso speaks of exclusion of the liability of the employer in the event of injuries resulting not to death or permanent injury caused because of taking of alcohol or of drugs. In the case in hand, the cause of death is said to have been for consumption of alcohol and as such the liability of the insurer is not obliterated. In the case in hand, the cause of death is said to have been for consumption of alcohol and as such the liability of the insurer is not obliterated. The exclusion/provision, in the case in hand, cannot operate to give any right to the employer to exclude his liability and so the petitioner, being the brother and the only legal representative, is entitled to get compensation as per the provision of the Workmen's Compensation Act. (ii) In support of his contention, learned senior counsel, Mr. Deb relied on the following case laws:- (a) Challis vs. London and South Western Railway Company (1905) KB 154 CA. (b) Nisbet vs. Rayne & Burn (1910) 2 KB 689 CA. (c) Board of Management of Trim Joint District School vs. Kelly (1914) AC 667. (d) New India Assurance Co. Ltd. vs. Ujjala Debbath & other (2001)1 GLR 336. (e) New India Assurance Co. Ltd. vs. Ajoy Medhi (1995)3 GLR 471. (f) National Insurance Co. Ltd. vs. Sabita Gope & other (2000)1 GLR 571. (g) Thengackal Estate vs. Reethammal 1996 ACJ 1114. (iii) Per contra, learned counsel, Mr. Gautam has submitted that the consumption of alcohol is not incidental to the work of the deceased employee. The death had no nexus or casual connection with the employment of the deceased. According to him, the deceased died in course of his employment but the reason of his death was personal to him because of his consumption of heavy quantity of alcohol, which could not relate to his employment, and therefore, the Insurance Company cannot be saddled with the responsibility of making payment of any compensation. 5. Decision: It may be gainfully said that the Employees Compensation Act is a piece of social security and welfare legislation. The growing complexity of industries with the increasing use of machineries and consequent danger to workmen along with the comparative poverty of the workmen themselves, rendered it advisable that they should be protected, as far as possible, from hardship arising from accidents. The law was enacted with that dominant purpose. Provisions of the Act should not be interpreted narrowly so as to debar the workmen from compensation. The intention of the legislature is to make the employer an insurer of the workmen responsible against the loss caused by the injuries or death, which ought to have happened, while the workman was engaged in his work. Provisions of the Act should not be interpreted narrowly so as to debar the workmen from compensation. The intention of the legislature is to make the employer an insurer of the workmen responsible against the loss caused by the injuries or death, which ought to have happened, while the workman was engaged in his work. While interpreting the law liberally, the Tribunal/Court is also bound to see that the benevolent purpose of law is not misplaced and that in genuine cases a workman or his representatives are entitled to get adequate compensation as prescribed by law. 6. For critical examination, fair appreciation and ready reference, let us first reproduce here sub-section(1) of Section 3 of the Employees Compensation Act, which reads thus:- (1) If personal injury is caused to[an employee] 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: 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 [employee] 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 [employee] having been at the time thereof under the influence of drink or drugs. (ii) The willful disobedience of the [employee] to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of [employees]. (iii) The willful removal or disregard by the [employee] of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of [employee]. Admittedly, Bhola Kal was a workman/employee, employed by respondent No.1 as Helper-cum-Cleaner of the vehicle and in course of employment he died. 7. Let us first see what is an accident. The word, accident has not been defined in the statute but the judgment law by the time adequately defined it. Accident should be understood in the popular and ordinary sense as an unlooked for mishap or an untoward event which is not expected or designed. 7. Let us first see what is an accident. The word, accident has not been defined in the statute but the judgment law by the time adequately defined it. Accident should be understood in the popular and ordinary sense as an unlooked for mishap or an untoward event which is not expected or designed. For the purpose of law relating to the compensation for personal injuries sustained by workman and the employer's liability in that behalf includes any injury, which is not designed by the workman himself, and it is of no consequence that the injury was designed and intended by the person inflicting the same. Self inflicted injuries cannot be said to have been caused by an accident as the mishap or accident has to be looked at from the point of view of the person, who suffers from it. Mere death in the ordinary course by bodily ailment or for the reason attributable to himself, even in the course of employment cannot attract the liability of the employer under section 3. The words, "injury and accident" in Section 3 imply the existence of some external fact to cause apart from internal ailment of the body. In the case of Kelly (supra) Lord Mecnaghten remarked "I come, therefore, to the conclusion that the expression accident is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed." In the case of Regional Director, ESI Corporation & another vs. Francis De Costa & another 1993 Supp.(4) SCC 100, AIR 1997 SC 432 , the Apex Court held, the expression "accident" has not been defined in Workmen's Compensation Act. This expression generally means, some unexpected event happening without design. It can be said that the expression "accident" has been used in a popular and ordinary sense and means "mishap" or "untoward event not expressed or designed". In the case of New India Assurance Co. Ltd. vs. Ajoy Medhi & another reported in (1996) AC 727(Gau), this Court held Accident-occurrence resulting in injury or death which is unexpected or un-designed on the part of the workman is an accident. Act is a piece of social security legislation and its various provisions ought to receive a liberal interpretation which is more favourable to the person for whose benefit the legislature in its great wisdom has legislated it. Act is a piece of social security legislation and its various provisions ought to receive a liberal interpretation which is more favourable to the person for whose benefit the legislature in its great wisdom has legislated it. The Division Bench of Gujarat High Court in the case of Ambalal vs. LIC of India 1993(3) TAC 269 (Guj). has held thus: The word 'accident' has a very wide significance in its ordinary sense. The word though easy to understand when used in any particular context, is found to be difficult to define in a manner that would encompass all its shades of meanings. The expression 'accident' generally means some unexpected events happening without design, even though there may be negligence and it is used, in a popular and ordinary sense of the word, as denoting an unlooked for mishap or an untoward event which is not brought about by intention or design. Accidents can broadly be divided into two categories, viz., where there is some external act, agency or mishap and those where there is no such external act, agency or mishap. In legal contemplation, accident happens without any designed, intentional or voluntary causation such as an occurrence which happens by reason of some violence, casualty or viz. major without any design or voluntary co-operation. An unexpected personal injury resulting from an unlooked for mishap or occurrence would be an accident. The word 'accident' would get its colour from the context in which it is used. In the case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Carvali & another reported in (2007)11 SCC 668 , the Apex Court held thus:- Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or as that which could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. Death must arise out of accident. There is no presumption that an accident had occurred. 8. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. Death must arise out of accident. There is no presumption that an accident had occurred. 8. Let us now see whether personal injury was caused to the deceased employee Bhola Kal by accident in the course of his employment and whether the petitioner is entitled to get the benefit of the provision. At first, we may gainfully quote here an observation of the Apex Court in the case of The State of Tripura v. The Province of East Bengal and Union of India reported in AIR 195 1 SC 23, wherein the Apex Court has held thus- The word "wrong" in ordinary legal language means and signifies "privation of right". An act is wrongful if it infringes the legal right of another, and "actionable" means nothing else than that it affords grounds for action in law. Ordinarily, the word "injury" is used in the same sense of actionable wrong, while "damage in contrast with injury means loss or harm occurring in fact whether actionable as injury or not. 9. If we carefully read the provision of sub-section (1) evident that "an injury", "arising out of or in the course of employment", resulting in death or permanent total disablement or permanent partial disablement, etc, as the case may be, is a sine qua non for claiming of compensation under the Employee's Compensation Act. 10. Let us critically examine the fact of the case. In the claim petition the petitioner stated that the deceased Bhola Kal performed strenuous job in cleaning and loading the vehicle, and as a result of heavy exhaustion, he died on account of his heart failure. The petitioner was not an eye witness of the work of the deceased but on hearsay he made the statement. The vehicle was loaded at Guwahati and was on way to Agartala and it simply parked at Bagpasa during night time and the driver and the deceased-Helper were supposed to take rest. The petitioner in his deposition stated that he learnt that his brother died due to heart failure inside the cabin. In his evidence he stated nothing that because of any exhaustion or heavy work, his brother died. The petitioner in his deposition stated that he learnt that his brother died due to heart failure inside the cabin. In his evidence he stated nothing that because of any exhaustion or heavy work, his brother died. He relied on the post-mortem examination report, which he submitted along with other documents, including Death Certificate, Salary Certificate, copy of information lodged by him to P.S., etc. The postmortem examination was done at Sub-Divisional Hospital, Dharmanagar and the Autopsy Surgeon opined that the death was due to severe myocardial infarction from consumption of heavy quantity of ethyl alcohol leading into cardio-respiratory failure. The report shows that post-mortem examination was done on 12.03.2000 at about 3.30 PM. Death occurred at any time on the intervening night of 10.03.2000 and 11.03.2000. The Autopsy Surgeon observed that the body was decomposed and there were some brushes and skin was peeled out at various sites especially abdomen. He found no fracture and no dislocation. The Autopsy Surgeon observed in the column of detailed description of injuries that the deceased consumed ethyl alcohol in excessive quantity, which led into severe myocardial infarction and heart attack for which he might have fallen from certain height and suffering bruise over scalp after getting unconscious. The postmortem examination report, which was placed on record, makes it clear that the cause of death was consumption of excessive quantity of ethyl alcohol, which cannot have any nexus or casual connection with his employment. In the claim petition, though the claimant stated about exhaustion due to heavy work, there was no evidence in support of it. He also stated nothing in his deposition. The driver of the vehicle also not examined. Under the circumstances, regarding the cause of death, the documentary evidence i.e. the postmortem report was the only evidence to be considered, which abundantly shows that the deceased, having consumed heavy quantity of ethyl alcohol, had died, which was not connected with his employment in any manner. 11. In the case of Shakuntala Chandrakant Shreshti (supra), the Apex Court has held-What is necessary for attracting the charging provision contained in Section 3 of the Act is that (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment. In the case of Kelly (supra) the House of Lords at page 680 observed "injury" and "accident" were not to be separated, and that "injury by accident" meant nothing more than accidental injury or accident as the word is popularly used. In clause (i) of proviso (b) of sub-section (1) of Section 3, as already reproduced above, shows that the employer shall not be liable in respect of any injury not resulting in death (or permanent total disablement), caused by an accident which is directly attributable to the workman having been at the time thereof under the influence of drink or drugs. Here in the present case, the deceased workman suffered no injury resulting to his death rather for his voluntary consumption of excessive quantity of ethyl alcohol he died for which the employer cannot be held responsible to make payment of compensation. The argument of learned counsel of the appellant that since death was caused in the course of employment, petitioner is entitled to get compensation, I am sorry to accept such argument of the learned counsel in the facts and circumstances of this case, in view of the clear provision of law. Personal injury under the Act means physiological injury. It may be external, or may be internal. In the case of chest pain arising during duty alter remaining busy in strenuous work for many hours may be termed as an accidental internal injury. Accidental injuries are distinct in cases where accident is an event happening externally to a man, but sometimes an accident may be an event happening internally to a man and in such cases accident and injury coincide. No doubt, the word, "injury" in Section 3(1) is of wide connotation and includes a disease. It is a wider term than bodily injury and is not confined to some actual physical hurt to the body of the employee. It may include a stress and strain. It may also include nervous shock caused by an excitement and alarm resulting from a fatal accident to a fellow workman. It may also include an occupational disease. But consumption of alcohol in heavy quantity by the workman, while taking rest or sleeping during night time, can in no way be termed as an injury because of an accident arising out of employment. It may also include an occupational disease. But consumption of alcohol in heavy quantity by the workman, while taking rest or sleeping during night time, can in no way be termed as an injury because of an accident arising out of employment. In the case of Regional Director, EST Corporation (supra), the Apex court held Literal construction of phrase 'arising out of his employment' conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman due to the accident. But it is wide enough to cover the case where there may not necessarily be a direct connection of the workman. The casual relationship between employment and the accident does not logically necessitate direct or physical connection. It may be of various steps, namely, direct, physical, approximate, indirect or incidental In the case of Mackinnon Mackenzie and Co. (P) Ltd. vs. Ibrahim Mahmmed Issak reported in (1969)2 SCC 607 the Apex Court has 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 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 causal 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 or 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. If the accident had occurred or 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. Although the onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant, these essentials may be inferred when the facts proved justify the inference It is of course impossible to lay down any role as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. In the case of Jyothi Ademma vs. Plant Engineer, Nellore and another reported in (2006) 5 SCC 513 , the Apex Court held that the expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. It has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear, of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. 12. Here in the case in hand, there is practically no iota of evidence that the deceased suffered any injury because of any accident arising out of or in the course of his employment, and therefore, no liability can be fixed on the employer for the death of the deceased. 13. The doctrine of added peril may be relevant for work undertakes to do something, which he is not ordinarily called upon to do and it involves extra danger, he cannot hold his master liable for the risks arising there-from. The doctrine, therefore, comes into play when the workman is, at the time of meeting the accident, performing his duty. 13. The doctrine of added peril may be relevant for work undertakes to do something, which he is not ordinarily called upon to do and it involves extra danger, he cannot hold his master liable for the risks arising there-from. The doctrine, therefore, comes into play when the workman is, at the time of meeting the accident, performing his duty. Therefore to find whether the death was caused by added peril, the relevant enquiry to make, is whether the thing was within the sphere of employment and incidental to it. Whether it was in the interest of work of the employer or was simply done carelessly or negligently if the answer to the above is in the affirmative, then the accident would be said to be out of and in the course of employment and the plea of added peril would fail. On the other hand, if the answer is in the negative and if it is found that the thing was foreign to the scope of employment, i.e. something to which the workman voluntarily exposed himself not about the business of the employer but about his own business then it would not be out of employment and it would be a case of added peril. 14. In the case at hand, the deceased voluntarily consumed heavy quantity of ethyl alcohol as a result of which he died due to myocardial heart failure. The doctrine of added peril, therefore, is applicable to the case of the deceased. Further, the maxim "Nemo ex proprio dolo Consequitur actionem" which means that a person cannot be permitted to take advantage of his own wrong, he will not be allowed to found a claim upon his own iniquity. The maxim is applicable in the case of the deceased workman. 15. I have meticulously gone through the judgments referred by learned senior counsel, Mr. Deb. In the case of Challis (supra) the deceased workman was an engine driver in the employment of the respondents and while the train was passing under a bridge a stone was pelted from the bridge by a boy which struck and broke the 'eye-glass' of the driver's cab on the engine, and as a result, the driver received severe injury and after some months he died. Compensation was claimed and in that case it was held by the King's Bench Division that the accident was arising out of and in the course of employment, and so, the compensation was allowed. In the case of Nisbet (supra), Nisbet was a cashier employed by the appellants and in the course of his duty he was carrying large sum of money to pay the wages of the colliers and while traveling in the train in the discharge of his duty, the bag of money was stolen and he was also killed. Though it was a criminal act, the claim of compensation by the widow of Nisbet was allowed considering that it was an accident arising out of and in the course of the employment. In the case of Kelly (supra), John Kelly was employed by the appellants as an Assistant Master of Trim School and he was the Superintendent of the boys in the School and in the play ground. The boys were angry with Kelly because he had stopped them playing hurley, or hockey, in the school. On the evening of February 12, 1912, the boys collected in a shed adjoining the school, armed with hurley sticks, etc. and when Kelly came out from the School and went to the shed, the boys struck on him and he received fracture injury on his head and consequently died. The claim of compensation was allowed in the case of Kelly (supra) considering that the death was arisen out of and in the course of employment. 16. The facts of other cases referred by the learned counsel for the appellant-petitioner clearly distinguishable from the fact of the present case and the ratio of those cases can in no way be applied in the facts of the present case. 17. The appeal, therefore, is found without merit, and accordingly, dismissed but in the circumstances without costs. Send back the L.C. records along with a copy of this judgment. Appeal dismissed.