Laxmidhar Kumbhar v. Divisional Manager, Orissa Forest Development Corporation Limited
2014-09-17
RAGHUBIR DASH
body2014
DigiLaw.ai
JUDGMENT RAGHUBIR DASH, J. 1. This appeal is in challenge of the judgment dated 25.02.1995 passed by the learned Commissioner for Workmen’s Compensation-cum-Assistant Labour Commissioner, Sambalpur in W.C. Case No. 3 of 1991 dismissing the claim for compensation made by the appellant consequent upon the accidental death of his father late Netra Kumbhar on the ground that the accident and the death of the deceased had no nexus with his employment nor was it incidental to his employment. 2. There is no dispute that the deceased Netra Kumbhar was employed by the respondent for cutting of bamboos in Podadihi Forest on piece-rate basis. On 04.03.1993 night, while he was sleeping in a hut near or at the worksite, a wild elephant trampled him to death. There is evidence to the effect that after the day’s work, some workers, including deceased, were sleeping in a hut at the worksite. A wild elephant chased them and trampled the deceased to death. 3. Learned Commissioner took the view that the accident caused by the wild animal has no nexus with the employment of the deceased, nor was it incidental to his duties. 4. Learned counsel for the appellant argues that the learned Commissioner should have appreciated that the deceased workman had stayed in the hut provided by the respondent to achieve better outturn of work, otherwise the deceased should not have stayed there exposing himself to the violence of wild animals in the forest. It is further argued that the course of employment started from the time when the workman left his residence towards his workplace and was to continue till the workman’s return to home. Learned counsel for the respondent, however, argues in support of the conclusion arrived at by the learned Commissioner. 5. Learned counsel for the appellant has cited decision of this Court Divisional Manager, M/s. Oriental Insurance Co. Ltd. vs. Subas Chandra Swain & Another, 104 (2007) CLT 343 and presses the following observations into service: Apart from that, this Court is reminded of its duty while construing the provisions of the Workmen’s Compensation Act, which is a social welfare legislation.
Learned counsel for the appellant has cited decision of this Court Divisional Manager, M/s. Oriental Insurance Co. Ltd. vs. Subas Chandra Swain & Another, 104 (2007) CLT 343 and presses the following observations into service: Apart from that, this Court is reminded of its duty while construing the provisions of the Workmen’s Compensation Act, which is a social welfare legislation. In construing such legal provision the Court has a duty to construe it in a manner which preserves the right of the workman belonging to a socially weaker Section and to eschew an interpretation which takes away the benefit, provided the interpretation in favour of the workman is reasonably possible in the facts and circumstances of the case. 6. In the reported case the workman was deputed to a garage to look after the repairing of the employer’s vehicle and on 3.2.1991, after taking permission of his employer, the workman was returning home riding on a bicycle. On the way a truck dashed him as a result of which he sustained fracture. Their Lordships under such circumstances held that since the accident took place after the commencement of the duty and while the claimant was coming back after discharging his duty, the accident could be said to have taken place out of his employment. 7. On factual aspect, the aforecited decision has no application to the case in hand. No authority has been cited in support of the contention that the course of employment starts from the time when the workman starts his journey from his residence towards the place of employment and it continues till he comes back home. The expression in course of employment cannot be given elasticity to such an extent. Rather, this proposition does not find support from the aforecited decision wherein it has been observed that when accident takes place but at a distance from place of employment, there is no casual connection between the injury/death and the employment. 8. It is well settled that the expression in course of employment means within the currency of employment and the expression out of employment, in relation to the injury caused in accident, connotes that the injury might have been caused as a result of some causal connection between the employment and the injury. 9.
8. It is well settled that the expression in course of employment means within the currency of employment and the expression out of employment, in relation to the injury caused in accident, connotes that the injury might have been caused as a result of some causal connection between the employment and the injury. 9. In Subas Chandra Swain’s case (supra) it is observed that if the injury is in some way incidental to the duties of the workman and unless the workman has invited the injury by endangering himself in any unreasonable way, the injury will be one out of employment. 10. In the judgment in Mackinnon Machenzie and Co. Pvt. Ltd. vs. Ibrahim Mahmmed Issak, 1969 (2) SCC 607 , Hon’ble Supreme Court held that 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. 11. Unless it is proved that the accident had a casual connection with the employment and it was suffered in course of employment, the claimant is not entitled to get any compensation. 12. Learned counsel for the respondent has relied on a decision of the Supreme Court in Regional Director, E.S.I. Corporation and Another vs. Francis De Costa and Another, AIR 1997 SC 432 which deals with a situation where the workman was going from his home to his place of work and on the way he suffered injury in an accident. Under such fact-situation it is held that the accident cannot be said to have arisen out of and in course of his employment. On factual aspect this judgment is also not applicable to fact situation of the case in hand. 13. Learned Commissioner in the impugned judgment has referred to a decision of this Court in a case between D.M., New India Assurance Co. vs. G. Krishna Rao and Others decided on 27.04.1994 stating that in that case the deceased was a labourer employed by a contractor and was engaged in construction of Koraput-Rayagada Railway Line. The deceased was provided with a hut by the contractor at the worksite.
vs. G. Krishna Rao and Others decided on 27.04.1994 stating that in that case the deceased was a labourer employed by a contractor and was engaged in construction of Koraput-Rayagada Railway Line. The deceased was provided with a hut by the contractor at the worksite. The deceased on the date of incident after the day’s work was sleeping at night in the hut. A fire broke out which gutted the hut and deceased workman was burnt alive. In the said facts and circumstances, this Court is quoted to have observed as follows: Such accommodation by itself cannot form a basis to claim compensation on the ground that death by accident was caused out of and in the course of employment. The accident caused by fire has no nexus to the employment of the deceased, nor was it incidental to her duties. In the circumstances, no reasonable or legitimate reference can be drawn that the accidental death arose out of and in the course of employment of the deceased. This decision is found reported in I (1995) ACC 582 (ascertained from the website http:// indiankanoon.org). The fact situation in the case G. Krishna Rao (supra) is almost identical to that of the case in hand. 14. That apart, it is stated by one of the co-worker examined before the Commissioner that the deceased used to stay at the worksite as because his native place was at a far off place. It implies that the night stay in the worksite had no nexus with the deceased’s bamboo cutting work for which he was engaged on piece-rate basis. The deceased was at liberty to reside somewhere else as well. The employer had not compelled him to stay at the worksite. Under such circumstances, it cannot be said that the accidental death in question had any nexus with the deceased’s employment or that there was any causal relationship between the accident and the employment. Therefore, findings of the learned Commissioner is not liable to be disturbed. 15. In the result, the appeal is dismissed and the impugned judgment is confirmed.