The National Insurance Co. Ltd. v. Lolakshi K. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** **MFA.NO. 191 OF 2008()** **---------------------------------WCC.156/2002 OF W.C.C., KANNUR** **....................** ## **APPELLANT(S): 2ND OPPOSITE PARTY** **----------------------------------------------------------** **THE NATIONAL INSURANCE CO.LTD., KASARAGOD, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-35.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENT(S) - APPLICANTS & IST OPPOSITE PARTY:** **---------------------------------------------------------------------** **1. LOLAKSHI.K., W/O.LATE DAYANANDA RAO.R., NEAR LAKSHAMVEEDU, KUNTANGARADKA, P.O.KUMBA, KASARAGOD TALUK & DIST.** ## **2. NAVEENAKSHA,** **S/O.LATE DAYANANDA RAO.R., NEAR LAKSHAMVEEDU, KUNTANGARADKA, P.O.KUMBA, KASARAGOD TALUK & DIST.** **3. RESHMA, D/O.LATE DAYANANDA RAO.R., NEAR LAKSHAMVEEDU, KUNTANGARADKA, P.O.KUMBA, KASARAGOD TALUK & DIST.** **4. SHARATHRAJ, S/O.LATE DAYANANDA RAO.R., NEAR LAKSHAMVEEDU, KUNTANGARADKA, P.O.KUMBA, KASARAGOD TALUK & DIST.** **5. PRAMOD, S/O.LATE DAYANANDA RAO.R., NEAR LAKSHAMVEEDU, KUNTANGARADKA, P.O.KUMBA, KASARAGOD TALUK & DIST.** ## **6. SUSMITHA,** **D/O.LATE DAYANANDA RAO.R., NEAR LAKSHAMVEEDU, KUNTANGARADKA, P.O.KUMBA, KASARAGOD TALUK & DIST.** ## **7. NARAYANA SALIAN,** **S/O.RAMA MASTER, RAMA NILAYA, MADHURA NAGAR, KUMBLA, P.O.KUMBLA, KASARAGOD TALUK & DIST.** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **'C.R.'** ## **J.B. KOSHY & THOMAS P.JOSEPH, JJ.** = = = = = = = = = = = = = = = = = = = = = = = = = = **M.F.A.(WCC) No.191 of 2008** = = = = = = = = = = = = = = = = = = = = = = = = = = = **Dated this the 28[th] day of November, 2008** ## **J U D G M E N T** ---------------------- ## **Koshy, J.** This appeal is filed by the insurance company against the judgment of the Workmen’s Compensation Commissioner in awarding compensation for a workman who was murdered during the course of employment, on an application by his widow and 5 children. It is the case of the appellant that the murder has nothing do with the use of the motor vehicle and it is not arising out of employment. 2. Facts of the case is that the deceased was engaged by the first opposite party to drive his autorikshaw. There is no dispute that deceased was a workman as defined in the Act. While he was on duty, 2 persons hired the autorikshaw and he was killed by them. When they hired the autorikshaw, the deceased thought that they were bonafide passengers and they had no previous enmity with him, but they killed him. If he were aware that they are not bonafide passengers, he would not have allowed them to travel in his autorikshaw. The Commissioner has found that the murderers hired the autorikshaw as bonafide passengers and killed the driver. Hence ## **M.F.A(WCC) No.191 of 2008** ## **-: 2 :-** the incident occurred during the course and arising out of the employment. 3. The Commissioner has further observed thus: “The workman was killed while he was working as a driver. His Autorikshaw was hired by the people on the disguise of ordinary passengers and he was killed by them. If he was not doing the job of driver, at this point of time he would not have been killed by this killers. He had no suspicion about these passengers who later turned his killers. Therefore there is no doubt that it was an accident out of his employment”. This is a finding of fact based on FIR, charge sheet and oral evidence adduced. In the light of the admitted facts the deceased was engaged as a driver by the first respondent and that he was killed while performing the duties as a driver. His death was certainly connected with the employment and there is nexus to the death and use of motor vehicle and his employment. In **Lancashire and Yorkshire Railway Company v. Highley** (1917 AC 352) it was observed ## **M.F.A(WCC) No.191 of 2008** ## **-: 3 :-** by Lord Sumner as follows: “There is, however, in any opinion, one test which is always at any ate applicable, because it arises upon the very words of the Statute, and it is generally of some real assistance. In is this:Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, 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. To ask if the cause of this was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury”. ## **M.F.A(WCC) No.191 of 2008** ## **-: 4 :-** This decision was approved by the Apex Court in **M.Mackenzie v.** ## **I.M.Issak** (AIR 1970 SC 1906). 4. When it is admitted that the accident occurred in the course of employment, the burden is on the employer to prove that it has no connection with the employment. Shri Chagla C.J. in **Bhagurai v. General Manager, Central Rly.** (AIR 1955 Bom. 105) held as follows: “Once that proximate connection is established the applicant has discharged he burden, and in this case the proximate connection between the employment and the injury is the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death. In our opinion the learned Commissioner was in error in coming to the conclusion that the applicant had failed to discharge the burden that the deceased died of injury by accident arising out of his employment”. In the above case the Division Bench of Bombay High Court dealt with ## **M.F.A(WCC) No.191 of 2008** ## **-: 5 :-** a case where a workman on his way to work was murdered. It was held that the death took place because of an accident arising out of employment. Chagla, C.J. emphasised that there must be a casual connection between the accident and the death before it could be said that the accident arose out of employment of the concerned workman. In that case, the deceased was employed by Central Railway at Kurla Station and he lived in the railway quarters adjoining the station. It was found as a fact that the only access for the deceased from his quarters to the Kurla Railway Station was through the compound of the railway quarters. On December 20, 1952, the deceased left his quarters a few minutes before midnight in order to join duty. While on his way, he was stabbed by some unknown persons. When accidental injuries are caused in the course of employment, rebuttable presumption is that it is arising out of employment. There is express statement in a similar Social Security Legislation, i.e., The Employees State Insurance Act where compensation is provided for employment injuries sustained during the course of employment and arising out of employment. Section 51A of the ESI Act reads as follows: ## “51A. **Presumption as to accident arising** ## **M.F.A(WCC) No.191 of 2008** ## **-: 6 :-** **in course of employment.** - For the purpose of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment”. 5. On the facts of this case we have no doubt that the injuries sustained by the deceased during the course of employment have direct nexus to the employment and he was subjected to the peril. Only because he was driving the autorikshaw, it was hired by the members of the political party. Merely because the murderers might have been hired by other persons due to the political enmity to the deceased it cannot be stated that death is not arising out of employment. The Workmen's Compensation Act is a welfare legislation and it should be interpreted liberally considering the object of the legislature. In an identical case, **United India Insurance** **Co. Ltd. V. Philo** (1996 (1) KLT 423) a Division Bench of this Court awarded compensation to the dependents of a driver of a taxi who was killed by assailants during the course of employment. We also agree with the above view. In **Samir Chandra v. M.D. Assam** ## **M.F.A(WCC) No.191 of 2008** ## **-: 7 :-** **State Transport Corporation** (1998 ACJ 1351) the Supreme Court considered a similar question under the Motor Vehicles Act. There while the bus was going through Assam during the Assam agitation some passengers were bombarded and some of them were injured. The Supreme Court held that it was arising out of the use of the motor vehicle. In view of the clear finding of fact that the incident occurred in the course of employment and it is arising out of employment, we are of the opinion that no interference is required with the impugned judgment. Appeal fails and it is dismissed. ## **J.B. KOSHY, JUDGE.** ## **THOMAS P.JOSEPH, JUDGE.** vsv