Rajasthan High Court

R.B. Moondra And Co. vs Mst. Bhanwari And Anr. on 22 April, 1969
Equivalent citations: AIR 1970 Raj 111
JUDGMENT C.B. Bhargava, J.

1. This appeal by the employer is directed against the judgment of the

Workmen Compensation Commissioner, Jodhpur dated 15th May,
1967 allowing Rupees 7000 compensation to the widow of deceased
Gordhan singh.

2. The material facts which have given rise to this appeal may he
shortly stated thus. The deceased was employed as a driver on a truck
of the appellant which used to carry petrol tank. The deceased reported
to the appellant that the tank was leaking upon which the appellant got
the tank partly filled with water at night and ordered the deceased to
check it on the next morning. On the next morning i.e., on 10th
November, 1963, the deceased entered the tank to see from where it
leaked and lighted a match stick as a result of which it caught fire and
the deceased received burns due to which he succumbed subsequently.

3. The evidence produced on behalf of respondent No. 1 was that the

match box was supplied to the deceased by the appellant. But this fact
was denied by the appellant in his deposition and in the opinion of the
learned Commissioner it was doubtful that the appellant had given the
match box to the deceased though no reasons are given for the
aforesaid conclusion.

4. The learned Commissioner on the evidence found that the deceased

was a workman, that the accident arose in the course of and out of his
employment, that the deceased was getting Rs. 150 p.m. as wages, that
the widow was not debarred from claiming compensation on account
of her remarriage and that the compensation could not be awarded
against the insurance company in these proceedings.

5. Learned counsel for the appellant contends:

1. that in the present case the accident did not arise out of and in the
course of the deceased's employment and it occurred due to the 'added
peril' that is the lighting of match stick within the petrol tank by him.

2. that the Commissioner ought to have held the insurance company

i.e., respondent No. 2 also liable for compensation,

3. that after remarriage respondent No. 1 was not entitled to claim

compensation because she no longer remained a dependent.

6. I will take up these contentions one by one. As for the first

contention it is urged by the learned counsel that the deceased was
employed as a driver at the appellant's truck and it was no part of his
duty to clean the tank or to detect the point of leakage. Even if it be
held that the accident arose in the course of employment it cannot be
held that it arose out of it because the deceased by lighting the match
stick within the tank committed an act which no prudent person would
have done in the circumstances and the said act was not necessary for
the purpose of employment. Thus it was a case where the deceased by
his own conduct brought about the accident. Reliance is placed on
Gouri Kinkar Bhakat v. Radha Kishen Cotton Mills, AIR 1933 Cal
220; Devidayal Ralyaram v. Secy. of State, AIR 1937 Sind 288;
Bhurangya Coal Co., Ltd. v. Sahebjan Mian, AIR 1956 Pat 299;
Barnes v. Nunnery Colliery Co. Ltd., 1912 AC 44 and Stephen v.
Copper, 1929 AC 570.

7. In order to appreciate the argument it would be useful to reproduce

the relevant parts of Section 3 of the Workmen's Compensation Act
(hereinafter called the Act.) "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, 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 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."

8. It would appear from the above provision that if personal injury is

caused to a workman by accident arising out of and in the course of his
employment, the employer shall be liable to pay compensation except
where the injury does not result in the total or partial disablement of
the workman for a period exceeding three days and except in the case
where injury results in death, the accident is directly attributable to the
causes mentioned in Sub-clauses (i), (ii) and (iii) of proviso (b). In
order to claim compensation the employee has to show not only that at
the time of the accident he was in fact employed on duties of his
employment, but further that the immediate act which led to the
accident was within the sphere of his duties and not foreign to them. In
case of death of an employee due to accident if it has arisen out of and
in the course of his employment it is no defence to plead that there was
wilful disobedience of any order or rule expressly given or framed for
the purpose of securing the safety of the workman. Clause (b) of the
proviso to Sub-section 1(1) of Section 3 is limited to those cases where
injury has not resulted in death. This is quite evident from the language
of the section itself and if any authority is needed I may refer to
Thomas v. Ocean Coal Co. Ltd. 1932 All ER 458 where on the
following facts that the workman was a hitcher in a coal mine, his
duties being, inter alia, to help in getting full trams into and empty
trams out of the cages. His proper place of work was on the loading, or
full tram side of the pit bottom, but he was expected to help, in cases

of emergency, in dealing with empty trams on the other side of the pit.
On April 17, 1931, he crossed the pit bottom to see to the working of
empty trams and then ran back across the shaft bottom towards his
proper working side to be ready to receive a cage when it landed. So to
cross the shaft bottom, was expressly prohibited by a regulation made
under the Coal Mines Act, 1911. Before the workman could get fully
across the shaft bottom the descending cage struck and killed him. On
a claim for compensation by his widow, it was held on the construction
of English Workmen's Compensation Act of 1925 that:

"In considering whether the case came within Section 1(2) of the
Workmen's Compensation Act, 1925, it must first be ascertained,
disregarding the prohibition contained in the regulation whether the
workman's death was due to an accident arising out of and in the
course of his employment; if it did, the effect of the prohibition in
removing the accident from that category could be annulled if the later
conditions in the subsection as to the act being done by the workman
for the purposes of and in connection with his employer's trade or
business' were fulfilled; in the present case the accident certainly arose
out of the workman's employment and it also arose in the course of
that employment since he had been engaged to work on both sides of
the pit and desired to expedite that work; his contravention of the
regulation did not put him outside the sphere of the employment, and
so his act was done for the purposes of and in connection with the
employers' business; and, therefore, his widow was entitled to
compensation."

9. The view expressed in this case was approved later on in Noble v.

Southern Railway Co., 1940-2 All ER 383 and on the following facts
that the deceased, a fireman employed by the respondents, was ordered
to proceed from an engine-shed to a railway station. The permitted
routes for this journey did not involve walking along the railway lines,
and several warnings had been issued by the respondents to their staff
forbidding them to walk along the lines unless they were using a
permitted route. The deceased proceeded to walk along the lines, and
was killed by a train; it was held that; "As the evidence established that

the deceased was acting for the purposes of, and in connection with,
his employers' trade or business, and was acting within the sphere of
his employment, the accident must be deemed to have arisen out of
and in the course of his employment, although the act was in
contravention of the employers' rule. The widow, was, therefore
entitled to recover compensation."

10. However, as it is not the case of the appellant that the act of the
deceased was in wilful disobedience of any express order or rule it is
not necessary to pursue the matter further. But this much is clear that
where injury has resulted in death the question about disobedience of
any rule or order is not material so long as it can be held that the
accident arose out of and in the course of the employment.

11. Here the contention of the learned counsel for the appellant is that
it was the rash conduct of the workman in lighting the match stick
within the empty petrol tank which caused the accident and, therefore,
the employer cannot be held liable for compensation. He says that the
workman by his own conduct 'added peril' and lost his life due to the
accident. But if wilful disobedience of any express order or rule cannot
be a good defence in case where injury has resulted in death how can
mere negligence or rashness on the part of the workman arising out of
and in the course of his employment be a good defence? In my opinion
negligence or rash conduct of the workman in cases where the accident
arises out of and in the course of the employment, is immaterial, The
question in such cases is to see whether what the workman did was
really an improper way of doing what he was employed to do or was
something outside the sphere of his employment. If the case falls under
the first category, the employer is liable, while in cases falling under
the second category, there will be no such liability of the employer.
The case of Gouri Kinkar Bhakat, AIR 1933 Cal 220 is a case falling
within the second category. There the learned Chief Justice came to the
conclusion that the duties of the workman who was a piecer in the
spinning department of a cotton mill did not include anything which
required his getting down underneath the table and interfering with the
tin tollers while they were in motion. The workman's story as to his

dhoti being caught while he was standing by the machine was found
impossible. In Devidayal Ralyaram's case, AIR 1937 Sind 288 where a
fitter who wanted some scrap to make nuts and studs went under the
machine to take ii from the scrap-heap under the machine which when
set in motion caused a permanent injury to his hand which rendered it
almost useless. It was no part of the fitter's duty to go into the machine
shop and search under the machine for pieces of scrap, and in fact
fitters were prohibited from passing through the machine shop to the
store to get scrap for the purpose of their work. It was held that:

"As the injury suffered arose out of an added peril to which the fitter
had voluntarily and unnecessarily exposed himself, it did not arise out
of and in the course of his employment and he was not entitled to
compensation".

12. In Bhurangya Coal Co's case, AIR 1956 Pat 299 it was held that:

"The principle of added peril contemplates that if a workman while

doing his master's work undertakes to do something which he is not
ordinarily called upon to do and which involves extra danger he cannot
hold his Master liable for the risks arising therefrom. This doctrine,
therefore, comes into play only when the workman is at the time of
meeting the accident performing his duty." However, on the facts of
that case the defence of added peril was found to have no foundation.
It was established in that case that the deceased workman had at that
time gone from incline 24 to incline 25 to do something which was a
part of his usual job and through a route not forbidden; and while he
was on his way back from there he suddenly saw the rake of tubs
coming up towards him. At that he tried to avoid the danger but the
space there being narrow, the attempt failed.

In Barnes's case, 1912 AC 44 on the following facts that a boy

employed at a colliery, noticing that an endless rope having a number
of empty tubs attached to it was about to start from a level where his
work was, jumped into the front tub with three other boys in order to
ride to his work instead of walking as he ought to have done, and in
the course of the journey his head came in contact with the roof of the

mine and he was killed. It was a common practice for the boys to ride
to their work in the tubs, but it was expressly forbidden and the
prohibition was enforced as far as possible. Upon a claim by the father
for compensation under the Workmen's Compensation Act, 1906, the
County Court Judge found that the accident arose out of the deceased's
employment, it was held that:

"There was no evidence to justify this finding, and that the death was
caused by an added peril to which the deceased by his own conduct
exposed himself, and not by any peril involved by his contract of
service."

In the course of the judgment Lord Atkinson observed that:

"In these cases under the Workmen's Compensation Act a distinction

must I think, always be drawn between the doing of a thing recklessly
or negligently which the workman is employed to do, and the doing of
a thing altogether outside and unconnected with his employment peril
which arises from the negligent or reckless manner in which an
employee does the work he is employed to do may well be held in
most cases rightly to be a risk incidental to his employment. Not so in
the other case."

In the same judgment Lord Mersey observed that:

"He was not doing a permitted act carelessly, but he was doing an act
which he was prohibited from doing at all."

The above observations, if I may say so with respect lay down the
crucial test,"

13. In 1929 AC 570 on the following facts that a farm servant was
employed to drive a reaping machine drawn by two horses placed on
either side of a centre pole and yoked to the machine by means of
chains. While he was driving the machine one of the chains became
detached from the backband of the near horse. The driver thereupon
stopped the machine, but without putting the cutting blade out of gear,

and attempted by walking along the pole between the horses to refix
the chain. The pressure of his weight upon the pole made the horses
start forward, and he fell from the pole on to the cutting blade and was
seriously and permanently injured, it was held that:

"There was evidence to support the finding of the arbitrator that the
risk taken by the driver was not incidental to his employment, but was
an added peril due to his own voluntary conduct, and accordingly, that
the accident did not arise out of the employment."

In that case Lord Shaw of Dunfermline after making the following

observations that "Of added peril and the cluster of cases around that
phrase I would beg to be allowed to say that there are no
inconsiderable dangers of an erroneous development of the law by
making added peril a sole test and therefrom a settled and conclusive
category of cases which are excluded from the 'remedial' operation of
the Workmen's Compensation Act.

Granted an extra hazard, it is not enough to dub it an added peril and to

follow me cases; the true inquiry may be only beginning. On the one
hand a fundamental question is, was the course taken by the workman
prompted by his own indolence or purely for his own convenience and
not in the interests of the work, say, by effectiveness or dispatch? If so
then the extra hazard is not only an added peril but a needless peril and
an arbitrator is free to find that the accident did not arise out of the
employment.

On the other hand, the conditions not merely of skilled labour, but of
much simpler and more ordinary labour, over and over again present
emergencies and unexpected difficulties, great and small, and Courts
and arbitrators should be slow to reckon out of the employment
unusual acts done or simple devices adopted to get the work forward
and to meet emergent difficulties, the merit of a good workman is to
show a dexterity both of hand and mind to Overcome these and he
may under-estimate the hazard of his efforts in the attempt to be both a
time saver and a labour saver. But in my opinion the statute does not
on a sound interpretation mean that an accident occurring in the course

of such acts and with the hazard referred to did not arise out of the
employment. The range of routine is not necessarily the measure of
employment" reluctantly and with doubt agreed with the judgment. In
the same judgment Lord Warrington of Clyffe quoted with approval
the following observations of Lord Sumber in Lancashire and
Yorkshire Rly. Co. v. Highley, 1917 AC 352 that:

"There is .... one test which is always at any rate applicable, because it
arises upon the very words of the statute and it is generally of some
real assistance. It is this: Was it part of the injured person's
employment to hazard to suffer, or to do that which caused his injury?
If yes, the accident arose out of his employment. If nay, it did not,
because what it was not part of the employment to hazard, to suffer, or
to do cannot well be the cause of an accident arising out of the
employment."

14. In this connection it will be useful to notice a few more decisions

on the subject. In Harris v. Associated Portland Cement Manufactures
Ltd., 1939 AC 71 on the following facts that "The appellant's work
involved his standing in water, and before doing so, he, like the other
workmen similarly employed, tied sacking round the bottom of his
trousers to keep them dry. It was part of his duty to see that the sacks
after being so used were dried so that they could be available on the
following day. It was the recognized practice to dry the sacks at or near
an electric fan in a turbine in the motor room. While attempting on one
occasion to place the sacking near the fan, which was revolving, the
appellant's hand was caught by the fan and severed. On a claim for
compensation in respect of this under the Workmen's Compensation
Act the County Court Judge found that while the appellant, in seeking
to dry the sacking was doing something in the course of his
employment, he by putting the sacking in such close proximity to the
fan incurred & peril which no workman without extreme rashness
would have undertaken and there being nothing in the contract of
employment which obliged him to put his hand within the turbine the
act was outside his employment and therefore that he was not entitled
to compensation, it was held:

"that once it was found that the act which the appellant was seeking to
do was within the scope of his employment, the question of
negligence, great or small, in doing the act was irrelevant."

In that case Lord Atkin observed with reference to Stephen's case,

1929 AC 570 "On this finding of fact, which had to be accepted as
conclusive, the applicant necessarily failed. The case did not raise the
question of the degree of negligence in doing an employment act
turning the act into something outside the employment, and I find
nothing in the speeches delivered in this House to support that view.
The fact is that the workman's negligence in doing his job is one of the
most fruitful causes of injury; and, if it would in any degree preclude
compensation, the benefits of the Act would be seriously impaired. In
truth the negligence of the workman is as much a risk of his
employment as the negligence of his fellow workmen. 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. One must of course bear in mind the work which he is
employed to do, and the place in which he is employed to do it. Some
confusion has been introduced into the cases by treating accidents
which arose in out-of-employment places as though they were cases of
negligence. Still more by the unfortunate misapplication of the
expression, valuable enough in its right context, of 'added risk'. In a
sense every man who does his appointed work negligently adds to the
risks or his employment done carefully the risk of that employment
done carelessly. In fact the 'added risk' might I think, more correctly be
called a 'different risk', i.e., the risk in doing something which is not
within his employment at all."

In the same case Lord Thankerton observed that:

"The Courts below appear to me, with all respect, to proceed on a

misunderstanding of Lord Hailsham's dictum in Stephen v. Copper,
1929 AC 570 and a misapplication of the so-called doctrine of added
peril'. I cannot agree that the question is one of 'fact and degree' of

recklessness; in my opinion there must be a separable act as explained

by my noble and learned friend. In my opinion, there was no evidence
in the present case on which the arbitrator was entitled to find that
there was such a separable act, and the appeal should succeed.

In the same case Lord Wright quoted with approval the words of Lord
Macnaghten in Reed v. Great Western Rly, Co., 1909 AC 31 that:

"The problem may be compendiously stated in the words of Lord

Macnaghten in Reed v. Great Western Rly. Co., 1909 AC 31 as being
whether the man at the time when the accident happened was about his
own business, not about the business of his employers."

This case clearly enunciates the meaning of the phrase 'added peril'
and its application to cases arising under the Workmen's Compensation
Act and lays down that if the act which the workman was doing was
within the scope of his employment, the question of negligence greater
or small in doing that act is irrelevant. The same view finds expression
in Blanning v. C. H. Bailey Ltd., 1942-2 All ER 562 where a
workman, employed by the appellants, met with his death through
receiving burns caused by his clothing catching fire as the result of his
dropping a bottle of petrol near to a stove and the petrol becoming
ignited. The petrol was apparently intended to be used by the workman
for the purpose of cleaning his hands which became greasy as the
result of his work. There was no purpose directly connected with the
employment which necessitated the use of petrol. It was contended for
the appellants that there was no evidence that the accident arose out of
the employment; it was held that "In the circumstances it was
reasonable for the workman to have petrol with him for the purpose of
cleaning grease from his hands, its use not being expressly or
impliedly prohibited, and, therefore, the accident arose out of his
employment".

15. This case, therefore, establishes that no matter how negligent or

rash the workman's action, it arises out of the employment if it is
within the scope of his duty as an employee.

16. The expression "arising out of employment" is not confined to the

"nature of employment" but applies to the employment as such to its
nature, its conditions, its obligations, and its incidents (vide Lord Shaw
of Dunfermline in Mrs. Margaret Thorn or Simpson y. Sinclair, 1917
AC 127. 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 the work of the employer and 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 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.

17. The present case has therefore, to be judged in the light of the
above principles. It is clear that the deceased was employed as a driver
on the appellant's truck used for the purpose of carrying petrol in a
tank. On the previous day he had reported to the appellant that the tank
was leaking and so water was put in it for detecting the place from
where it leaked. The deceased was asked by the appellant to enter the
tank to see from where it leaked. Accordingly the deceased entered the
tank which had no petrol in it, but had been partly filled with water
and for the purpose of detecting the place from where it leaked, he
lighted a match stick. The deceased was at the place of his work and
did something in furtherance of the employer's work when the accident
occurred. It may be that instead of lighting a match stick he should
have used a torch to detect the place of leakage, but for the reason that
the tank was empty and had been partly filled with water on the
previous night, he might have little foreseen the risk involved. In these
circumstances the utmost that can be said is that the deceased acted
negligently or rashly, but it cannot be said that the act done was
outside the sphere of his employment. The distinction has to be kept in
view in cases where the injury by accident is due to a risk assumed

independently of the employment and outside it, as distinguished from

by an injury which is the result of a mere act of negligence. For the
purpose of the appellant's business he had entered the tank to see from
where it leaked and for that end also he lighted a match stick. I have,
therefore, no doubt that the accident arose out of the deceased's
employment and the act of lighting the match stick even if it be held as
a rash or negligent act, will not debar his widow from claiming
compensation.

18. As for the second contention the Act as appears from its preamble
was enacted to provide for the payment by certain classes of
employers to their workmen of compensation for injury by accident.
The term 'employer' has been defined in the Act and the insurance
company does not come within the ambit of that definition. Therefore
the Commissioner appointed under the Act will have no jurisdiction to
award compensation to a workman against the insurance company
unless the case falls within Section 14 of the Act which deals with the
liability of the insurers when the employer becomes insolvent, where
he has entered into a contract with any insurer in respect of any
liability under this Act, Obviously Section 14 has no application in this
case. Learned Counsel however, relies upon the provisions of Section
96 (1) and (2) of the Motor Vehicles Act. Under Section 96 (1) an
insurer is deemed to be a judgment-debtor when under certain
circumstances a decree is passed against the insured. But it does not
contemplate passing of a decree against the insurer himself. Section 96
(2) provides that the insurer shall not be liable under Sub-section (1)
unless before or after the commencement of the proceedings in which
the judgment is given the insurer had notice through the Court of the
bringing of the proceedings or in respect of any judgment so long as
execution is stayted thereon pending an appeal. These provisions, in
my opinion, do not help the appellant at all in his submission that the
Commissioner under the Act is authorised to pass a decree against the
insurance company even though it was made a party in the
proceedings at the instance of the respondent No. 1. The contention
has, therefore, no force and is rejected.

19. The last contention that the widow became debarred from claiming
compensation on account of her remarriage has also no force because
in the Act there is no such provision that after remarriage widow of the
deceased would not be regarded as a dependent. Under Section 21 of
the Hindu Adoptions and Maintenance Act, 1956, a widow remains a
dependant, within the meaning of that section so long as she is not
remarried. But the definition of the 'dependent' under the Act is not so
restricted and the fact that she has remarried will not disentitle her to
claim compensation under the Act.

20. Thus there is no force in this appeal and is hereby dismissed with
costs.