MANU/CG/0380/2010

Equivalent Citation: 2011AC J1923

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

M.C. (C) No. 511 of 2008
Decided On: 27.01.2010
Appellants: Jai Prakash Agrawal
Vs.
Respondent: Phool Sai and Ors.
Hon'ble Judges/Coram:
Mr. Justice N.K. Agarwal
Case Note:
Labour and Industrial - Compensation - Injury during course of employment
- Section 3(1) of Workmen's Compensation Act, 1923 (Act) - Commissioner
for Workmen's Compensation held that deceased died in accident which
arose out of and in course of employment and awarded amount of
compensation to Respondent Nos. 1 and 2(Claimants for deceased) - Hence,
this Appeal - Whether Commissioner justified to award compensation on
account of death of deceased while he was working as workman at time of
accident and whether there was any causal connection between accident
and work done in course of employment - Held, as per Section 3(1) of Act, if
personal injury was caused to workman by accident arising out of and in
course of his employment, his employer should be liable to pay
compensation in accordance with provisions of Act- Further in present case
deceased was employed by Appellant in road construction work and due to
that, deceased was working on public road under employment of Appellant
and said road accident occurred during course of employment - As very
nature of deceased's employment it was necessary for him to be there and
therefore it could be inferred safely that death resulted from risk incidental
to duties to service which unless engaged in road work - Thus it was
reasonable to believe that deceased would not otherwise had died and
there was causal connection between road accident on account of which
deceased died and employment - Therefore it could not be said that
Claimants failed to establish causal connection between accident and
employment - Hence Commissioner justified to award compensation on
account of death of deceased while he was working as workman at time of
accident - Appeal dismissed.Ratio Decidendi"Compensation awarded by
Authority on account of death of workman shall not be challenged, if it is
proved that injury had its origin during the performance of employment."
JUDGMENT
N.K. Agarwal, J.
1 . This is employer's appeal arising out of award dated 14.1.2008 passed by the
Commissioner, Workmen's Compensation, Labour Court, Korba in Case No. 8/W.C.
Act/07(f) whereby and whereunder an amount of Rs. 2,66,250 has been awarded to
the respondent Nos. 1 and 2-claimants for the death of Shankardas as against the
appellant along with Rs. 25,000 as penalty and costs of the proceedings as Rs. 1,000.
Interest has also been awarded at the rate of 10 per cent per annum if the amount is
not deposited within a period of one month.

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2 . The instant appeal was admitted for hearing by this court on the following
substantial question of law:
Whether the Commissioner for Workmen's Compensation, was not justified to
award the compensation on account of death of Shankardas while he was
working as workman at the time of accident?
3 . Indisputably, on 6.8.2006, i.e., the date of accident, deceased Shankardas was
working as labourer/workman under the employment of appellant and was employed
for road widening work at Power House Road, Korba (CG).
4. According to respondent Nos. 1 and 2-claimants, deceased sustained injuries while
working on the mixture machine whereas as per the appellant, the deceased was
dashed by unknown Sumo or Marshal jeep and sustained injuries when he went
outside the security zone to attend the call of nature.
5. It is not in dispute that the said deceased succumbed to the injuries sustained in
the said accident while working under the employment of the appellant and at the
place of employment.
6 . Learned Commissioner for Workmen's Compensation on a close scrutiny of the
evidence led, material placed and submissions made recorded a finding in favour of
the claimants that the deceased died in the accident which arose out of and in the
course of employment and awarded aforementioned amount of compensation.
7 . Mr. Otwani, the learned counsel for the appellant, would submit that as per the
police papers, the material and evidence available on record, employee Shankardas
died on account of motor vehicle accident by unknown vehicle and, therefore, there
was no causal connection between the death and employment of workman and the
learned Commissioner went wrong in awarding compensation to the claimants
against the appellant. For this, reliance has been placed upon two judgments of for
Court in case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali
MANU/SC/8649/2006 : 2007 ACJ 1 (SC) and in case of Malikarjuna G. Hiremath v.
Branch Manager Oriental Insurance Co. Ltd., MANU/SC/0202/2009 : 2009 ACJ 721
(SC).
8 . Mr. Sourabh Sharma, the learned counsel for respondent No. 3, supported the
contention raised by Mr. Otwani.
9. Per contra, Mr. Purohit, the learned counsel appearing for respondent Nos. 1 and
2, vehemently argued that the learned Commissioner has rightly passed the award
against the appellant after taking into consideration every aspect of the matter and
the same deserved to be upheld.
10. I have heard learned counsel for the parties, perused the award impugned and
the record of the court below.
11. Although the claimants have pleaded in their petition that the deceased died on
account of the injuries sustained while working on the mixture machine but they
could not substantiate this plea. In the same way, although the appellant has taken a
plea in his reply that the deceased died on account of the injuries sustained in the
road accident when he went outside the security zone to attend the call of nature but
he could not substantiate this plea. On the contrary as per the statement of Patanglal
Rathore examined by the appellant, when deceased was working on the road, one
vehicle bearing No. CG 12-D 0782 came from Transport Nagar and dashed against
plastic angle placed by the Nagar Palika Nigam, respondent No. 3, and ran over the

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deceased. It was also admitted by the said witness that the deceased was employed
by the appellant and was working on the site where accident occurred.
12. In view of above, following position of fact would emerge:
One unknown vehicle dashed against deceased while deceased was working
on the roadside under the employment of the appellant and also during the
course of employment as a result of which, he died.
1 3 . Now the question that falls for determination is whether there is any causal
connection between the accident and the work done in the course of employment.
14. Section 3(1) of Workmen's Compensation Act, 1923 which is relevant for the
purpose of this case reads as follows:
3. Employer's liability for compensation.-(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 workmen, 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. The Supreme Court in the case of Malikarjuna G. Hiremath, MANU/SC/0202/2009
: 2009 AC J 721 (SC), has observed in paras 9, 15 and 18 as under:
(9) Under section 3(1) it has to be established that there was some causal
connection between the death of the workman and his employment. If the
workman dies a natural death because 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.
(15) 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. In other words, death must arise out of accident.
There is no presumption that an accident had occurred.

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 (18) In Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak
MANU/SC/0310/1969 : 1969 ACJ 422 (SC), this court held:
(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' means '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 Supreme Court then after applying the aforesaid proposition of law in the facts of
that case has held in para 20 as under:
(20) It is the specific case of the claimants that on 30.11.2000 deceased who
was driving the vehicle on the direction of the insured had gone to
Gurugunta from Siraguppa. There he had gone to a temple and was sitting
on the steps of the pond in the temple and he slipped and fell into the water
and died due to drowning. This according to us is not sufficient in view of
the legal principles delineated above to fasten liability on either the insurer
or the insured. The High Court was not justified in holding that the present
appellant was liable to pay compensation.
1 6 . The Apex Court in case of Shakuntala Chandrakant Shreshti,
MANU/SC/8649/2006 : 2007 ACJ 1 (SC), has observed in paras 19 and 20 as under:
(19) The sufferance of heart disease amongst young persons is not unknown.
A disease of heart may remain undetected. A person may suffer a mild heart
attack but he may not feel any pain. There must, thus, be some evidence that
the employment contributed to the death of the deceased. It is required to be
established that the death occurred during the course of employment.
(20) This court in Employees' State Insurance Corporation,
MANU/SC/0117/1997 : 1996 ACJ 1281 (SC), referred to with approval the
decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig (1940)
AC 190, wherein it was held:
Nothing could be simpler than the words 'arising out of and in the
course of the employment'. It is clear that there are two conditions
to be fulfilled. What arises 'in the course of the employment is to be
distinguished from what arises 'out of employment'. The former
words relate to time conditioned by reference to the man's service,
the latter to casualty. Not every accident which occurs to a man
during the time when he is on his employment, that is, directly or
indirectly engaged on what he is employed to do, gives a claim to
compensation unless it also arises out of employment. Hence, the
section imports a distinction which it does not define. The language
is simple and unqualified...
The Supreme Court then after applying the aforesaid proposition of law in the facts of
that case has held in para 30 as under:
(30) In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja

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 MANU/SC/0166/1958 : AIR 1958 SC 881, this court held:
'It is well settled that when a workman is on a public road or a
public place or on a public transport he is there as any other member
of the public and is not there in the course of his employment unless
the very nature of his employment makes it necessary for him to be
there. A workman is not in the course of his employment from the
moment he leaves his home and is on his way to his work. He
certainly is in the course of his employment if he reaches the place
of work or a point or an area which comes within the theory of
notional extension, outside of which the employer is not liable to pay
compensation for any accident happening to him. In the present
case, even if it be assumed that the theory of notional extension
extends up to point D, the theory cannot be extended beyond it. The
moment a workman left point B in a boat or left point A but had not
yet reached point B, he could not be said to be in the course of his
employment and any accident happening to him on the journey
between these two points could not be said to have arisen out of and
in the course of his employment. Both the Commissioner for
Workmen's Compensation and the High Court were in error in
supposing that the deceased workmen in this case were still in the
course of their employment when they were crossing the creek
between points A and B. The accident which took place when the
boat was almost at point A resulting in the death of so many
workmen was unfortunate, but for that accident the appellant cannot
be made liable'.
1 7 . Apex Court in case of Employees' State Insurance Corporation v. Francis De
Costa MANU/SC/0117/1997 : 1996 ACJ 1281 (SC), while dealing with pari materia
provision of section 2(8) of the Employees' State Insurance Act, 1948 has observed
in paras 5 to 7 and 13 as under:
(5) That respondent No. 1 has suffered a personal injury is not in dispute.
The only dispute is whether the injury will amount to 'employment injury'
within the meaning of section 2(8), so as to enable the respondent to claim
benefit under the Act. The definition given to 'employment injury' in sub-
section (8) of section 2 envisages a personal injury to an employee caused
by an accident or an occupational disease 'arising out of and in the course of
his employment'. Therefore, the employee, in order to succeed in this case,
will have to prove that the injury that he had suffered arose out of and was
in the course of his employment. Both the conditions will have to be fulfilled
before he could claim any benefit under the Act. It does not appear that the
injury suffered by the employee in the instant case arose in any way out of
his employment. The injury was sustained while the employee was on his
way to the factory where he was employed. The accident took place one
kilometre away from the place of employment. Unless it can be said that his
employment began as soon as he set out for the factory from his home, it
cannot be said that the injury was caused by an accident 'arising out of...his
employment'. A road accident may happen anywhere at any time. But such
an accident cannot be said to have arisen out of the employment, unless it
can be shown that the employee was doing something incidental to his
employment.
(6) In our judgment, by using the words 'arising out of...his employment',
the legislature gave a restrictive meaning to 'employment injury'. The injury

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must be of such an extent as can be attributed to an accident or an
occupational disease arising out of his employment. 'Out of, in this context,
must mean caused by employment. Of course, the phrase 'out of has an
exclusive meaning also. If a man is described to be out of his employment, it
means he is without a job. The other meaning of the phrase 'out of is
'influenced, inspired, or caused by: out of pity; out of respect for him'.
(Webster Comprehensive Dictionary, International Edition, 1984). In the
context of section 2(8), the words 'out of indicate that the injury must be
caused by an accident which had its origin in the employment. A mere road
accident, while an employee is on his way to his place of employment,
cannot be said to have its origin in his employment in the factory. The
phrase 'out of the employment' was construed in the case of South Maitland
Railways Pty. Ltd. v. James 67 CLR 496, where construing the phrase 'out of
the employment', Starke, J., held the words 'out of require that the injury
had its origin in the employment'.
(7) Unless an employee can establish that the injury was caused or had its
origin in the employment, he cannot succeed in a claim based on section
2(8) of the Act. The words 'accident... arising out of...his employment'
indicate that any accident which occurred while going to the place of
employment or for the purpose of employment, cannot be said to have arisen
out of his employment. There is no causal connection between the accident
and the employment.
(13) The meaning of the words 'in the course of his employment' appearing
in section 3(1) of Workmen's Compensation Act, 1923, was examined by this
court in the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja
MANU/SC/0166/1958 : AIR 1958 SC 881. There, the appellant, a salt
manufacturing company, employed workmen both temporary and permanent.
The salt works was situated near a creek opposite to the town of Porbandar.
The salt works could be reached by at least two ways from the town, one an
overland route nearly 6 to 7 miles long and the other via a creek which had
to be crossed by a boat. In the evening of 12.6.1952, a boat carrying some
of the workmen capsized due to bad weather and overloading. As a result of
this, some of the workmen were drowned. One of the questions that came up
for consideration was whether the accident had taken place in the course of
the employment of the workers. S. Jafer Imam, J., speaking for the court,
held: 'As a rule, the employment of a workman does not commence until he
has reached the place of employment and does not continue when he has left
the place of employment, the journey to and from the place of employment
being excluded'. After laying down the principle broadly, S. Jafer Imam, J.,
went on to observe that there might be some reasonable extension in both
time and place to this principle. A workman might be regarded as in the
course of his employment even though he had not reached or had left his
employer's premises in some special cases. The facts and circumstances of
each case would have to be examined very carefully in order to determine as
to whether the accident arose out of and in the course of employment of the
workman, keeping in view at all times this theory of notional extension. But,
examining the facts of the case, in particular, after noticing the fact that the
workman used a boat, which was also used as public ferry for which they
had to pay the boatmen's dues, S. Jafer Imam, J., observed:
'It is well settled that when a workman is on a public road or a
public place or on a public transport he is there as any other member
of the public and is not there in the course of his employment unless

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 the very nature of his employment makes it necessary for him to be
there. A workman is not in the course of his employment from the
moment he leaves his home and is on his way to his work. He
certainly is in the course of his employment if he reaches the place
of work or a point or an area which comes within the theory of
notional extension, outside of which the employer is not liable to pay
compensation for any accident happening to him. In the present
case, even if it be assumed that the theory of notional extension
extends up to point D, the theory cannot be extended beyond it. The
moment a workman left point B in a boat or left point A but had not
yet reached point B, he could not be said to be in the course of his
employment and any accident happening to him on the journey
between these two points could not be said to have arisen out of and
in the course of his employment. But the Commissioner for
Workmen's Compensation and the High Court were in error in
supposing that the deceased workmen in this case were still in the
course of their employment when they were crossing the creek
between points A and B. The accident which took place when the
boat was almost at point A resulting in the death of so many
workmen was unfortunate, but for that accident, the appellant cannot
be made liable'.
18. The Supreme Court in case of State of Rajasthan v. Ram Prasad : 2001 ACJ 647
(SC), has held in paras 2 and 3 of its judgment as under:
(2) The accident, it is stated, took place on account of lightning. The
contention put forth on behalf of the appellant is that the mishap of death of
Gita due to lightning is an act of God and, therefore, not liable to pay
compensation. This contention has been rejected not only by the
Commissioner for Workmen's Compensation but also by the learned single
Judge in appeal and thereafter by a Division Bench in a further appeal. The
view taken is that the concept of the liability under the Act is wide enough to
cover a case of this nature inasmuch as death had taken place arising as a
result of accident in the course of employment. It is no doubt true that
accident must have a causal connection with the employment and arise out of
it. If the workwoman is injured as a result of natural force such as lightning
though in itself has no connection with employment, she can recover
compensation by showing that such employment exposed her to such injury.
In this case the finding is that the said Gita was working on the site and
would not have been exposed to such hazard of lightning striking her had
she not been working so.
(3) The learned counsel for the appellant relied upon a decision of this court
in Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak
MANU/SC/0310/1969 : 1969 ACJ 422 (SC). The view taken by the courts
below is not inconsistent with the view taken by this court. The appeal is,
therefore, dismissed.
19. In the light of dicta of the judgments of Supreme Court in above referred cases,
following position of law would emerge:
(i) To come within the Act, the injury by accident must arise both out of and
in the course of employment.
(ii) The words 'in the course of employment' mean in the course of the work

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 which the workman is employed to do and which is incidental to it.
(iii) The words 'arising out of employment' are understood to mean 'during
the course of employment, injury has resulted from some risk incidental to
the duties to 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.
(iv) 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 any 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.
(v) The onus of proving that the injury due to accident arose out of and in
the course of employment rests upon the applicant but these essentials may
be inferred when the proved facts justify the inference.
2 0 . In the present case, the deceased was employed by the appellant in road
construction work and due to that, the deceased was working on the public road
under the employment of appellant and the said road accident occurred during the
course of employment. As the very nature of his employment makes it necessary for
him to be there and, therefore, it can be inferred safely that the death has resulted
from the risk incidental to the duties to the service which unless engaged in the road
work, it is reasonable to believe, the deceased would not otherwise have died and
there is a causal connection between road accident on account of which deceased
died and the employment. Therefore, in the facts and circumstances of the present
case, it cannot be said that the claimants failed to establish causal connection
between the accident and the employment.
21. For the foregoing, the substantial question of law framed in the case is answered
in favour of the claimants.
22. The appeal fails and is dismissed.
23. No order as to costs.

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