JUDGMENT : The appellant/claimant has filed this appeal against the judgment and award dated 24.01.2017 passed in E.C.A. No.74/2014 on the file of the II Addl. Senior Civil Judge & MACT, Tumakuru, wherein the claim petition has been dismissed. I. FACTS OF THE CASE: 2. It is the case of the claimant that he was working as a Driver in the Canter Lorry bearing Registration No.KA-06-C-3006 under the respondent No.1 on monthly wages of Rs.8,000/- and bata of Rs.100/- per day. On 10.10.2010 at 11.30 p.m., when he was driving the lorry near Kadavigere gate on NH-4 road, Kallambella Hobli, Sira Taluk, he dashed the said lorry to another lorry bearing Registration No.KA-30- 6671 which was parked on the left side of the road to change its punctured tyre which was having indicator light. As a result, he suffered grievous injuries and immediately he was shifted to Adithya Hospital, Tumkur, where was under treatment as an inpatient and even after discharge from the Hospital, he was taking treatment as out-patient. He has spent more than Rs.60,000/- towards purchase of medicine, conveyance and other incidental expenses. The jurisdictional police have registered a case in Crime No.220/2010 against the claimant for the offences punishable under Sections 279 and 337 of IPC. The respondent No.1 is the owner and the respondent No.2 is the insurer of the said lorry and both are liable to pay compensation. II. OBJECTIONS FILED BY THE RESPONDENTS: 3. After service of notice, the respondent No.1 filed objections and admitted that he was the owner of the lorry bearing Registration No.KA-06-C-3006 and the claimant was working as a Driver for the said lorry under him and the accident occurred during the course of employment, where the claimant has sustained injuries and he was paying wages of Rs.5,000/- per month and bata of Rs.100/- per day. It was further contended that the respondent No.2 – Insurance Company is liable to pay compensation. 4. The respondent No.2 filed objections denying the entire claim averments and contended that the accident occurred due to the rash and negligent driving of the claimant himself and therefore, the claimant is not entitled for compensation and that the Driver of the tanker lorry was not holding valid and effective driving licence and hence, the respondent No.2 is not liable to pay compensation. III. ISSUES FRAMED BY THE TRIBUNAL: 5. III. ISSUES FRAMED BY THE TRIBUNAL: 5. Based on the aforesaid pleadings, the Tribunal framed the following issues and additional issues: i. Whether the petitioner Siddeshwara proves that he was a Workman under 1st respondent as defined in the Act? ii. If so, whether the petitioner proves that he has sustained injuries as a result of the accident that taken place on 10.10.2010 during the course of his employment with the 1st respondent? iii. If so, whether the petitioner proves the percentage of loss of earning capacity to him? iv. Whether the petitioner proves his age and salary as on the date of accident? v. If so, what is the quantum of compensation, penalty and interest petitioner is entitled to and how the respondents are liable to pay? vi. What order? Additional Issues: i. Whether the 2nd respondent proves that the driver of tanker lorry was not holding valid and effective driving license on the date of accident? ii. Whether the 2nd respondent proves that the petitioner is bad for non-joinder of necessary parties? IV. ORAL AND DOCUMENTARY EVIDENCE ADDUCED BY THE PARTIES: 6. In order to prove the case, the claimant was examined as PW1 and the Doctor as PW2. Through them, Exhibits-P1 to P8 were got marked. The respondent No.1 has not adduced oral and documentary evidence. On behalf of respondent No.2, its legal assistant was examined as RW1 and did not produce any documents. V. JUDGMENT AND AWARD OF THE TRIBUNAL: 7. The Tribunal considering the entire materials on record has recorded a finding that the claimant was working as a Driver under the respondent No.1 and proved that he has sustained injuries as a result of the accident which occurred on 10.10.2010 during the course of employment under respondent No.1; proved the percentage of loss of earning capacity; proved his age and salary as on the date of accident. Further, the Tribunal has held on the additional issues that the respondent No.2 has failed to prove that the Driver of the tanker lorry was not holding valid and effective driving license on the date of the accident and also held that the respondent No.2 has failed to prove that the claim petition is bad for non-joinder of necessary parties. Accordingly, the Tribunal by the impugned judgment and award has dismissed the claim petition. Hence, the present appeal is filed by the claimant. 8. Accordingly, the Tribunal by the impugned judgment and award has dismissed the claim petition. Hence, the present appeal is filed by the claimant. 8. I have heard the learned counsels for the parties to the lis. VI. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES: 9. Sri. K.R. Ramesh, learned counsel for the appellant contended that the impugned judgment and award passed by the Tribunal dismissing the claim petition is erroneous and contrary to the material records and the same is liable to be set aside. He would further contend that the Tribunal having held affirmative findings on Issue Nos.1 to 4, has committed serious error in dismissing the claim petition assigning erroneous reasons and further that the Tribunal has held that the accident occurred during the course of the employment and the same was admitted by the respondent No.1 in the statement of objections. He would further contend that the Tribunal proceeded to reject the application mainly on the ground of rash and negligent driving on the part of the claimant, relying upon the judgment of this Court in the case of Louis Martis v. Louis Korrea and another reported in ILR 2010 KAR 2600, which is not applicable to the facts and circumstances of the present case. Therefore, he sought to allow the appeal. 10. Per contra, Sri. S.Krishna Kishore, learned counsel for the respondent No.2 – Insurance Company, sought to justify the impugned judgment and award and contended that the charge-sheet is filed against the claimant for the accident occurred and therefore, he is not entitled to any compensation and sought for dismissal of the appeal. VII. SUBSTANTIAL QUESTION OF LAW: 11. This Court while admitting the appeal, has framed the following substantial question of law: “Whether the Tribunal is justified in dismissing the claim petition mainly on the ground that the accident occurred due to the negligence on the part of the injured, in view of the provisions of Section 3 of the Act and in the facts and circumstances of the present case?” VIII. CONSIDERATION: 12. I have given my anxious consideration to the arguments advanced by the learned counsels for the parties and perused the material on record carefully. 13. CONSIDERATION: 12. I have given my anxious consideration to the arguments advanced by the learned counsels for the parties and perused the material on record carefully. 13. It is not in dispute that the claimant was a Driver under the respondent No.1 and the accident occurred on 10.10.2010 arising out of and during the course of his employment, as specifically stated by PW1 on Oath before the Tribunal. The respondent No.1 who is the employer also filed objections before the Tribunal admitting that the claimant was working under him as a Driver and the accident occurred arising out of and during the course of employment and also stated that he was paying the monthly wages of Rs.5,000/- and bata of Rs.100/- per day. The Tribunal considering the entire materials on record has recorded an affirmative finding on Issue Nos.1 to 4 holding that the claimant has proved that he was a workman/employee under the respondent No.1, as defined under the E.C. Act and he has proved that he has sustained injuries as a result of the accident which occurred on 10.10.2010 arising out of and during the course of such employment under the respondent No.1; proved the percentage of loss of earning capacity and also proved his age and salary as on the date of accident. But, the Tribunal proceeded to dismiss the claim petition negating Issue No.5 holding that the accident occurred on account of rash and negligent driving on the part of the claimant and due to police registering a criminal case against him and relying upon the Division Bench judgment of this Court in the case of Louis Martis v. Louis Korrea and another reported in ILR 2010 KAR 2600. 14. Before considering the matter of negligence occurred during the course of employment, whether it applies to the provision of the Employee’s Compensation Act or not, it is better to refer to the provisions of Section 3 (1) of The Employee’s Compensation Act, 1923, (hereinafter referred to as ‘E.C. Act’ for short) which reads as under: “3(1). 14. Before considering the matter of negligence occurred during the course of employment, whether it applies to the provision of the Employee’s Compensation Act or not, it is better to refer to the provisions of Section 3 (1) of The Employee’s Compensation Act, 1923, (hereinafter referred to as ‘E.C. Act’ for short) which reads as under: “3(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 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 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 workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, 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.” 15. On a careful reading of the said provision, makes it clear that, in order to attract sub-section (1) of Section 3 of the E.C. Act, three conditions must be fulfilled: a. personal injury; b. accident; and c. arising out of and in the course of employment. It is necessary that if the workman/employee was working, he must be actually working at the time of injury or accident. Admittedly, in the present case, it is not in dispute that as on the date of the occurrence of the accident, the claimant was working as a Driver under the respondent No.1 and accident occurred arising out and during the course of employment. The employer who filed objections before the Tribunal has specifically admitted that the accident occurred arising out of and during the course of employment and that the claimant sustained grievous injuries. The Tribunal while considering the provisions of the E.C. Act, failed to consider the same. 16. The employer who filed objections before the Tribunal has specifically admitted that the accident occurred arising out of and during the course of employment and that the claimant sustained grievous injuries. The Tribunal while considering the provisions of the E.C. Act, failed to consider the same. 16. On a careful perusal of the aforesaid provisions, the compensation cannot be denied on account of negligence on the part of the claimant and the provisions of Section 3 does not create any exception of the kind, which permits the employer to avoid his liability, if there was negligence on part of the workman. The negligence on the part of the workman attracts only under the provisions of The Motor Vehicles Act, 1988 and the said provision has no bearing on the facts of the case on hand. The provisions of the E.C. Act does not envisage a situation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence. It is well settled by the dictum of this Court and the Hon’ble Supreme Court time and again, that mere negligence does not disentitle the workman/employee to compensation. It is well settled that once the employee has found the work which he is seeking to be within his employment, the question of negligence, great or small, is irrelevant and no amount of negligence in doing an employment job can change the workman’s action into a non-employment job. If the workman is doing an act which is within the scope of employment in a way which is negligent in any degree and is injured by a risk incurred only by that way of doing it, he is entitled to compensation. 17. The Tribunal while holding all issues in favour of the claimant, proceeded to deny the compensation and dismissed the claim petition, relying upon the dictum in the case of Louis Martis v. Louis Korrea and another reported in ILR 2010 KAR 2600. The Division Bench of this Court had no occasion to consider the scope of the Act or the provisions of Section 3 of the E.C. Act. On the careful reading of the provisions of Section 3, no where the employer liable to compensation is denied on account of negligence on the part of the claimant. The Division Bench of this Court had no occasion to consider the scope of the Act or the provisions of Section 3 of the E.C. Act. On the careful reading of the provisions of Section 3, no where the employer liable to compensation is denied on account of negligence on the part of the claimant. It is well settled that E.C. Act is a piece of social security and welfare legislation enacted to protect the workmen. The intention of the Legislature was to make the employer and the insurer of the workman responsible against the loss by the injuries or death, which ought to have happened while the workman was engaged in his work. 18. The Division Bench of this Court has rendered the judgment in the case of Louis Martis v. Louis Korrea and another, under the provisions of The Motor Vehicles Act, 1988 and had no occasion to consider the provisions of Section 3 of the E.C. Act. Therefore, the Tribunal while passing the impugned judgment and awarded exercising powers under the provisions of the E.C. Act, ought not to have relied upon the judgment of the Division Bench, which has no application on the facts and circumstances of the present case and therefore committed an error in rejecting the claim petition. 19. The meaning of the expression “arising out of employment” means that there must be a casual relationship between the accident and the employment. If the accident has occurred on account of risk which is incidental to the employment, it has to be held that the accident has arisen out of employment. The words “out of employment” is not limited to mere nature of employment, but it is arising out of employment (applies to its nature, conditions and obligations and its incidents) and if an accident, which occurs on account of risk, which is an incident of the employment, then the claim for compensation can succeed, provided that the workman/employee has exposed himself to an added peril by his own imprudent act, as contemplated under the provisions of Section 3 (1) (a) (b) (i) to (iii) of the E.C. Act. 20. It is well settled that men who are employed to work in factories or elsewhere are human beings and no machines. They are subject to human imperfections. 20. It is well settled that men who are employed to work in factories or elsewhere are human beings and no machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act. While no negligence on the part of the deceased has been made out from the facts of the case and he was merely trying his best to stop the lorry and the accident occurred suddenly. It would not disentitle him from claiming compensation under the provisions of the E.C. Act. 21. In view of the facts stated above, in the normal circumstances, this Court would have remanded the matter for reconsideration afresh. But, however in the peculiar facts of the case, this Court thought it fit, it is unnecessary to drive the parties to litigation and in order to save the time of the Court and based on the admitted facts, there is no need to remand the matter. This Court can decide based on the evidence and facts and circumstances the entitlement of the compensation of the claimant who has sustained injuries. My view is fortified by the dictum of the Hon’ble Supreme Court in the case of Jaya Biswal v. Branch Manager, IFFCO TOKIA General Insurance Company Limited reported in AIR 2016 SC 956 , at para Nos.20 and 21, which reads as under: “20. The learned counsel appearing on behalf of the appellants has also rightly placed reliance on the decision of this Court in the case of Mackinnon Mackenzie ( AIR 1970 SC 1906 ) (supra). In the facts of the instant case, the deceased was on his way to deliver goods during the course of employment when he met with the accident. The act to get back onto the moving truck was just an attempt to regain control of the truck, which given the situation, any reasonable person would have tried to do so. The accident, thus, fairly and squarely arose out of and in the course of his employment. 21. The act to get back onto the moving truck was just an attempt to regain control of the truck, which given the situation, any reasonable person would have tried to do so. The accident, thus, fairly and squarely arose out of and in the course of his employment. 21. The next contention which needs to be dispelled is that the appellants are not entitled to any compensation because the deceased died as a result of his own negligence. We are unable to agree with the same. Section 3 of the E.C. Act does not create any exception of the kind, which permits the employer to avoid his liability if there was negligence on part of the workman. The reliance placed on the decisions of this Court on Contributory negligence like the Three Judge Bench decision in the case of Mastaan ( AIR 2006 SC 577 ) (supra) is wholly misplaced as the same have been passed in relation to the Motor Vehicles Act, 1988, and have no bearing on the facts of the case on hand. The E.C. Act does not envisage a situation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence. It has been held by various High Courts that mere negligence does not disentitle a workman to compensation. Lord Atkin in the case of Harris v. Associated Portland Cement Manufacturers Ltd. observed as under: "Once you have found the work which he is seeking to be within his employment the question of negligence, great or small, is irrelevant and no amount of negligence in doing an employment job can change the workman's action into a non-employment job... In my opinion if a workman is doing an act which is within the scope of his employment in a way which is negligent in any degree and is injured by a risk incurred only by that way of doing it he is entitled to compensation." The above reasoning has been subsequently adopted by several High Courts. In the case of Janaki Ammal v. Divisional Engineer, the High Court of Madras held as under: "Men who are employed to work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. In the case of Janaki Ammal v. Divisional Engineer, the High Court of Madras held as under: "Men who are employed to work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act." While no negligence on part of the deceased has been made out from the facts of the instant case as he was merely trying his best to stop the truck from moving unmanned, even if there were negligence on his part, it would not disentitle his dependents from claiming compensation under the Act.” 22. For the reasons stated above, the substantial question of law framed in the present appeal has to be answered in the negative holding that the Tribunal is not justified in dismissing the claim petition, mainly relying on the judgment rendered by the Division Bench of this Court in the case of Louis Martis v. Louis Korrea and another reported in ILR 2010 KAR 2600, which is rendered under the provisions of The Motor Vehicles Act, 1988, which has no application on the facts of the present case and on the ground that the accident occurred due to the negligence on the part of the claimant, cannot be sustained. 23. It is not in dispute that the accident occurred on 10.10.2010 arising out and during the course of employment as recorded by the Tribunal. The employer – respondent No.1 also filed objections admitting that the claimant was a Driver working under him and was paying monthly wages of Rs.5,000/- and bata of Rs.100/- per day. The claimant was aged about 30 years and the relevant factor would be 207.98. Therefore, in view of the Notification issued by the Central Government dated 31.05.2010 exercising the powers conferred by sub-section (1B) of Section 4 of the E.C. Act, specifying the monthly wage as Rs.8,000/-, the monthly wages is taken as Rs.8,000/-. After considering the provisions of Section 4 (1) (b) of the Act, only 60% of the monthly wages to be considered, i.e., Rs.4,800/- and the relevant factor would be 207.98. 24. After considering the provisions of Section 4 (1) (b) of the Act, only 60% of the monthly wages to be considered, i.e., Rs.4,800/- and the relevant factor would be 207.98. 24. The Doctor who examined the claimant has assessed 15% disability to the whole body, has to be taken into consideration as per the provisions of Section 4 (1) (c) (ii) of the E.C. Act. My view is fortified by the dictum of the Apex Court in the case of Golla Rajanna and others v. Divisional Manager and another reported in (2017) 1 SCC 45 , at para 9 which reads as under: “9. The Workmen’s Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner.” 25. Admittedly, the respondent - Insurance Company has not filed any appeal against the adverse findings recorded by the Tribunal while answering Issue Nos.1 to 4 in the affirmative holding the claimant has proved that he was working under the respondent No.1 and accident occurred arising out of and during the course of employment. Therefore, the actual compensation payable to the claimant would be Rs.1,49,745/- (4800 x 207.98 x 15%). 26. For the reasons stated above, the appeal is allowed in part. The impugned judgment and award dated 24.01.2017 passed in E.C.A. No.74/2014 on the file of the II Addl. Senior Civil Judge & MACT, Tumakuru, is set aside. The claimant is entitled for a compensation of Rs.1,49,745/- with interest at 12% per annum, after one month from the date of the accident, till realization.