United India Insurance Co. Ltd. v. Saraswathy and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934** ## **MFA.No. 223 of 2010 ( ) -----------------------** ## **WCC.86/2006 of COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD ---------** ## **APPELLANT/2ND OPP.PARTY:** **--------------------------** **UNITED INDIA INSURANCE CO.LTD., SITHALAKSHMI COMPLEX, TIRUNAGAR, MADURAI.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/APPLICANTS AND OP1.:** **--------------------------------** ## **1. SMT.SARASWATHY, W/O.RAMAR** **2. RAJASEKHAR (MINOR) S/O.RAMAR** **3. HARISHKUMAR (MINOR) S/O.RAMAR MINORS 2 & 3 REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SARASWATHY THE FIRST RESPONDENT ALL RESIDING AT MANGAMARAPPADY, LILLY DIVISION MANALAROO ESTATE, NELLIYAMPATHY.** **4. SRI ALAKAPPAN, W/O.DORAISWAMY, LILLY DIVISION, MANALAROO ESTATE, NELLIYAMPATHY.** **5. SMT.ALAMELU,** - **W/O.ALAKAPPAN, LILLY DIVISION, MANALAROO ESTATE NELLIYAMPATHY.** **6. MANALAROO ESTATE, PADAGIRI POST,** - **NELLIYAMPATHY, CHITTUR TALUK.** - **R1-R5 BY ADV. SRI.T.K.SANDEEP** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2012 THE COURT ON 29-03-2012, DELIVERED THE FOLLOWING:** ## **VK** ## **THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ---------------------------------------- MFA(WCC)No.223 of 2010 ---------------------------------------Dated this the 29[th] day of March, 2012 ## **JUDGMENT** ## **Ravikumar, J.** The insurer is before us, in appeal, against the order in W.C.C.No.86 of 2006 of the Commissioner for Workmen's Compensation, Palakkad. `Is not the finding that the death arose out of employment perverse and contrary to evidence in this case and can the Commissioner come to such a perverse finding contrary to evidence' and `is not the direction to pay the interest, that too from the date of accident, under a miscellaneous policy, illegal and contrary to the dictum laid down by the Hon'ble Apex Court in _**New India Assurance Co. Ltd.**_ v. _**Harshadbhai Amrutbhai Modhiya**_ (2006 (2) KLT 667) and _**National Insurance Co. Ltd.**_ v. _**Mubasir Ahmed & Anr.**_ (II (2007) ACC 374 (SC))' are framed in the Memorandum of Appeal as the questions of law involved in the case. 2. A narration of facts, shorn of unnecessary details, is required for deciding the aforesaid questions. MFA(WCC).No.223/2010 2 The deceased Ramar was, admittedly, a permanent electric worker in the Lilly Division of Manalaroo Estate, Nelliyampathy, the sixth respondent herein/the first opposite party in W.C.C.No.86 of 2006. The appellant herein was the second opposite party and respondents 1 to 5 herein were the applicants, therein. According to them, on 6.7.2005 at about 6 p.m. the said Ramar had attended electric repair works in the bungalow of Assistant Manager of the said division and on his way to attend the repair work in the adjacent bungalow he was stabbed by one person by name Guruvayur. He succumbed to the injuries on the way to Medical College Hospital, Thrissur. 3. The widow of the deceased, the first respondent herein and a co-employee of the deceased one Sri.Vimal were examined respectively as AW1 and AW2. Ext.A1 - copy of F.I.R. and Ext.A2 - wage slip were marked on the side of the applicants. There was no oral evidence on the side of the appellant herein, the second opposite party therein and copy of judgment in Case No.SC.364 of 2006 and copy of the inquest report were marked respectively as Exts.B1 and B2 on its side. After carefully appreciating the evidence, both oral and documentary, the Commissioner found that the deceased Ramar met with the accident arose out of and in the course of his employment MFA(WCC).No.223/2010 3 under the first opposite party/the 6[th] respondent herein. With respect to the quantification of and the quantum of, compensation there is no challenge in this appeal. As already noticed, the challenge in this appeal is against the findings of the Commissioner that death of the said Ramar had arisen out of and in the course of his employment as also that the insurer is liable to indemnify the insured in respect of the interest portion, that too, from the date of accident. 4. Before dealing with the first question, we think it only appropriate to refer to the reasoning of the Commissioner for holding the death of Ramar as one arose out of and in the course of employment with the 6[th] respondent. There was no serious dispute with respect to the employment of the victim with the sixth respondent, as electrical worker, during the relevant period. There was also no dispute regarding the fact that on that fateful day at about 6 p.m. the said Ramar had attended the electric repair work in the bungalow of the Assistant Manager of Lilly Division of the sixth respondent. AW2 Sri.Vimal, who was a co-employee of the deceased, deposed thus:- “ഞ�ന ഡ��ട� കഴ�ഞ� ആറ�മണ�ക� ഇറങ�. ര�മര ബ�ഗ���വ�ല��ന�� വ!ട�ല#ക� ല$�ന വഴ�ക� തനനയ�ണ� സ�ഭവ�. ര�മര ല*�രയ�ല ക���ച�ക�ടക�നത�ണ� സ�ഭവ�.” MFA(WCC).No.223/2010 4 The first opposite party, the sixth respondent herein, remained ex parte. Obviously, the fact that the said Ramar was stabbed to death while returning home, after attending duty, gained support from the evidence adduced before the Commissioner. The appellant herein, relied on the decision in _**Employees State Insurance Corporation**_ v. _**Francis D. Costa**_ (1996 (2) KLT 799) to contend that the murder of the said Ramar on his way back home by an adversary by name Guruvayur could not be said to have arisen out of and in the course of his employment to make it a case for compensation under the statute. However, considering the evidence, oral and documentary, and also the decisions in _**Divisional Manager, Oriental Insurance Co. Ltd.**_ v. _**Subas Chandra Swain**_ (2008 ACJ 2210) and _**T.N.C.S.Corporation Ltd.**_ v. _**S.Poomalai**_ (1996 ACJ 273) the Commissioner held that the accident that took away the life of the said Ramar had arisen out of and in the course of his employment under the first opposite party. 5. We have heard the learned counsel for the appellant and learned counsel for the respondents. 6. The appellant relied on the decisions of the Hon'ble Apex Court in _**Saurashtra Salt Manufacturing Co.**_ v. _**Bai Valu Raja and others**_ (AIR 1958 SC 881) and _**E.S.I. Corporation**_ v. _**Francis De Costa**_ (1996 (2) KLT 799 (SC)) to substantiate the contention that the MFA(WCC).No.223/2010 5 accident in question could not be regarded as one that arose out of and in the course of employment of the said Ramar with the 6[th] respondent and therefore, the case in hand is not a fit case for compensation under the statute. The learned counsel for the appellant contended that Exts.A1 and B1 would reveal that the said Ramar was murdered by one Guruvayur on account of the personal animosity developed towards him on his misbehaving with the wife of Guruvayur. In **Saurashtra Salt Manufacturing Co.'s** case (supra), the meaning of the phrase “in the course of employment” appearing in section 3(1) of the Workmen's Compensation Act, 1923 was considered by the Hon'ble Apex Court. The said decision was relied on by the Hon'ble Apex Court in **Francis De Costa's** case (supra) and paragraph 13 of which reads thus:- “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 Company**_ v. _**Bai Value Raja** , (_ **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 over land 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 over-loading; 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 MFA(WCC).No.223/2010 6 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 whether the accident arose out of and in the course of the employment of 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 boatman’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 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 upto 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 MFA(WCC).No.223/2010 7 resulting in the death of so many workmen was unfortunate, but for that accident, the appellant cannot be made liable.” (emphasis supplied) 7. In **Francis De Costa's** case (supra), the Hon'ble Apex Court was dealing with the provisions under section 2(8) of the Employees' State Insurance Act defining `employment injury' as one caused to an employee by an accident or an occupational disease arising out of and in the course of his employment. It was held that, in order to succeed in such a case, it has to be proved by the concerned employee that (1) there was an accident (2) the accident had a casual connection with the employment and (3) the accident must have been suffered in the course of employment. As already noticed hereinbefore, in **Francis De Costa's** case (supra) the Hon'ble Apex Court had relied on the earlier decision in **Saurashtra Salt Manufacturing Co.'s** case (supra), wherein it was held, as a rule, the employment of a workman did not commence until he reached the place of employment and did not continue when he left the place of employment. The above extracted portion from the said judgment would reveal that even after laying down such a broad principle, the Apex Court went on to observe that there might be some reasonable extension in both time and place to the said principle. A workman might be regarded as in the course of MFA(WCC).No.223/2010 8 his employment even though he had not reached or had left his employer's premises as a special case. A careful reading of the decisions relied on by the appellant would thus reveal that they did not state any inviolable position or proposition that under no circumstances an accident happening to a workman on his journey to or from the place of employment could be deemed as an accident arising out of and in the course of employment to make it a case fit for compensation under the statute. In other words, even going by the decisions relied on by the appellant answer to the question whether injury/death of a particular workman would make his/her employer liable for compensation under the Act would depend upon the facts and circumstances of each case. Merely because the accident that resulted in disablement or death had taken place outside the employer's premises would not and could not be a reason disentitling a claim for compensation and its admissibility for compensation under the statute depends upon the facts and circumstances including the extensibility of the theory of notional extension in the given circumstances. As already noticed hereinbefore, in this case, it is an admitted fact that the deceased Ramar was a permanent electric worker under the sixth respondent herein. It is also not in dispute that on 6.7.2005 at about 6 p.m. he had attended electric repair work in the bungalow of Assistant Manager of Lilly Division. There is no case that the deceased had gone MFA(WCC).No.223/2010 9 to the bungalow of the Assistant Manager not in connection with his employment. In fact, that fact could not be disputed by the appellant herein. In this context, it is to be noted that the first opposite party, the sixth respondent herein, did not enter appearance and resist the case of the claimants. The above extracted portion from the deposition of AW2 Vimal would reveal that after attending the duty the said Ramar was returning home and the incident that resulted in his death occurred enroute. A careful consideration of the rival contentions as also the evidence on record would reveal that there is no real factual dispute on the said aspects. The contention of the appellant is that the incident that resulted in the death of the said Ramar had no casual connection with his employment, that is, with the 6[th] respondent and, therefore, it could not be deemed as an accident for the purpose of Section 3(1) of the Act for fastening liability to pay compensation on the appellant. On the above mentioned facts, the Commissioner had applied the decisions of the Hon'ble Supreme Court in _**Divisional Manager, Oriental Insurance Co. Ltd.**_ v. _**Subas Chandra Swain**_ (2008 ACJ 2210) and _**T.N.C.S.Corporation Ltd.**_ v. _**S.Poomalai**_ (1996 ACJ 273) to hold that the deceased Ramar had met with the accident that led to his death, arose out of and in the course of employment under the first opposite party. True that, it is a nefarious activity on the part of his adversary one Guruvayoor that caused the said Ramar his life. Merely because of MFA(WCC).No.223/2010 10 the fact that he was stabbed to death by such an adversary, how can it be said that the claimants are disentitled to claim compensation for the death of the said Rama under the provisions of the Act ? In **Subas Chandra Swain's** case ( _supra_ ) the concerned workman was hit by a truck and sustained injuries while he was returning home from his place of work on a bicycle after discharging his duties. Paragraphs 8 and 9 of the said judgment by a Division Bench of the High Court of Orissa at Cuttack assumes relevance for the purpose of this case. They read thus:- “8. This expression `arising out of and in the course of employment' which finds place in section 3 of the _Workmen's Compensation Act, 1923_ , has been virtually lifted from the English Act of 1897. This phrase has been characterised by _Justice Frank Murphy_ of the Supreme Court of United States as `deceptively simple and litigiously prolific'. (See _Cardillo Frankv. A.V.Liberty Mutual Insurance_ , 330 US 469 at page 479). If we analyse the expression `arising out of and in course of employment' we find that two ideas have been rolled into it. Firstly, the phrase `in course of employment' suggests a particular point of time meaning thereby that the injury must have been inflicted with the currency of employment. But the other expression `out of employment' obviously connotes that the injury might have been caused as a result of some casual connection between the employment and the injuries. In other words, 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. That is why in section 3 of the Act the expression which has been used is `employment' and not `work'. The word `employment' is much wider than the work `work'. Therefore, when the legislature MFA(WCC).No.223/2010 11 has consciously used the expression `employment' there is a notional extension of the sphere of work in the expression `employment'. 9. In the instant case the workman was engaged by his master to look after the repairing work and after discharging his duty while the workman was returning the accident took place. Therefore, the decision in _Francis De Costa's_ case, 1996 ACJ 1281 (SC), does not apply to the facts of the present case.” In **T.N.C.S.Corporation Ltd.** ( _supra_ ), the concerned workman was on his way to the mill, wherein he was employed, for attending to his duties and he was murdered in a communal riot. The contentions that the incident had taken place before the commencement of work, outside the work place and absence of casual connection between the murder and employment were repelled by the High Court of Judicature at Madras in view of the facts, circumstance and evidence. Oral testimony of AW2 Sri.Vimal would reveal that the said Ramar had attended repair works in the bungalow of the Assistant Manager and thereafter, left home. Further, he would depose that Ramar was found lying thanatoid in a pool of blood, on his way. If the peril which Ramar had encountered was not an added peril produced by himself, then, it has to be a case for compensation, in the said circumstances. The learned counsel for the first respondent drew our attention to a decision of a Division Bench of this Court in _**Oriental Insurance Co. Ltd.**_ v. _**Abdul Salim**_ (2009 (3) KLT 757) in which one of us (C.T.Ravikumar, J) was a MFA(WCC).No.223/2010 12 party. The question posed for consideration in the said case was whether felonious or flagitious act of foes leading to disablement of a workman can be construed as an accident under section 3 of the Workmen's Compensation Act ? It was held therein thus:- “In order to be justiciable for the purpose of compensation under S.22 of the Act an incident occurred leading to the death or disablement of a workman must be an 'accident' as contemplated under S.3 of the Act. A perusal of S.3 of the Act reveals that the term 'accident' is qualified by the expression 'arising out of' and in the 'course of employment'. A scanning of the said expression would further reveal that the first phrase 'arising out of employment' carries with it the first ingredient, that the injury must have been one sustained as a result of some casual connection between the workman's employment and the injury sustained by him. In other words, there has to be proximity between his employment and the injury sustained and that it should not be one invited by putting himself exposed to danger in an unreasonable manner. The second phrase 'in the course of employment' carries the second ingredient that the injury must have been one sustained within the currency of his employment. The evidence and circumstances in this case would undoubtedly lead to the irresistible conclusion that the first respondent would not have been present at the scene of occurrence, but for his engagement as a driver in the said vehicle. It is also not in dispute that while reversing the vehicle after unloading the bricks, it was intercepted and the first respondent was pulled out of it and was beaten up severely by some persons. The mere fact that such a flagitious act was designed by some persons who are in inimical terms with him and they intended to inflict such injuries would not have and could not have any significance or consequence for the purpose of deciding the issue, so long as the injuries were not at all designed by the first respondent/applicant. There is absolutely no such attribution on the first respondent. It is a settled position that so long as the workman had no role in designing the incident which led to his death or disablement the fact that the assailants designed and intended to inflict such injuries on such person cannot have any significance for the MFA(WCC).No.223/2010 13 purpose of deciding whether the act in question is an accident, as contemplated under S.3 of the Act. Viewing in that angle, the incident occurred on 1.4.2002 at about 8.30 p.m. in which the first respondent sustained the aforesaid injuries is an 'accident' as contemplated under S.3 of the Act.” (emphasis supplied) We have already adverted to the version of AW2. There is not even a suggestion that the workman had a role in designing the incident or contributed to the incident which led to his death or disablement. His adversary Guruvayur, must have nursed a grudge against Ramar and accordingly designed the incident and inflicted the injuries. The evidence in this case tends to suggest that but for his engagement as electric worker under the 6[th] respondent the deceased would not have been present at the scene of occurrence at the relevant point of time. He was asked to attend repair work in the Assistant Manager's bungalow and after performing his duties he was on his way back home. There is no case for the appellant that Ramar had deviated from the normal route. On the other hand, the evidence of AW2 would reveal that Ramar was taking the normal route to return home. In the circumstances, there can be no case and in fact, there is no case, that the peril that Ramar had encountered was an added peril produced by himself. It is in this context that the distinction between `employment' and work and also the findings regarding notional extension of sphere of work in the expression `employment' made in paragraph 9 in **Subas** MFA(WCC).No.223/2010 14 **Chandra Swain's** case ( _supra_ ) assume relevance. 8. Now, we may further consider the relevant expressions `arising out of employment' and `in the course of employment' employed in section 3(1) of the Act. The phrase `arising out of employment' refers to the origin of the causes of the injury while, the phrase `in the course of employment' refers to the time, place and circumstances under which the injury occurred. While interpreting the expressions in a welfare legislation, wider meaning which would do justice to and serve its purpose and intent have to be accepted. Therefore, the phrase `arising out of employment' has to be given a wider meaning of `connected with' than a narrow meaning of `arising under'. In other words, there need not be a direct connection between the injury or death caused as a result of the accident and the employment of the concerned workman. The word `course' employed therein applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of danger and injured or killed, the broad words of the statute `arising out of employment' would have to be applied provided, the peril which he encountered was not an added peril produced by the workman himself. The expression `in the course of employment' is different and distinct from `during the period of MFA(WCC).No.223/2010 15 employment'. If the accident in question had occurred while the concerned workman was doing something, which is part of his service to his employer which need not be the actual work and it may be the natural incidence connected with the class of work and the accident should be fell within the expression `in the course of employment'. If a workman, on account of the nature, conditions or obligations of service, was obliged to attend a particular work, at any time, if he is called upon to do so, and if on the way to or from the place of work he happened to be encountered with an accident without any added peril produced by him/her to say that the accident in which he is injured or killed is absolutely unconnected with his employment and not `in the course of employment' would definitely defeat the purpose and intent of the welfare legislation. The evidence in this case would reveal that the deceased Ramar was returning home after attending repair work in the bungalow of the Assistant Manager and he would have been brought within the zone of danger but for his employment. In the circumstances, the Commissioner cannot be said to be at fault in relying on the decisions in **Subas Chandra Swain's** case ( _supra_ ) as also in **T.N.C.S.Corporation Ltd.** (supra) to find that the accident in which Ramar was killed had arisen out of and in the course of his employment. MFA(WCC).No.223/2010 16 9. The finding of the Commissioner in this regard is not vitiated by any error of law or perverse appreciation of facts or evidence and it calls for no interference. In the circumstances, the appellant cannot contend that it is not a case for compensation under the statute. 10. Another question is also posed for consideration in this case. According to the appellant, the Commissioner had ignored the decisions of the Hon'ble Apex Court in _**New India Assurance Co. Ltd.**_ v. _**Harshadbhai Amrutbhai Modhiya**_ (2006 (2) KLT 667) and _**National Insurance Co. Ltd.**_ v. _**Mubasir Ahmed & Anr.**_ (II (2007) ACC 374 (SC)). The impugned order would reveal that as per the same the Commissioner found that the first opposite party is liable to pay the workmen's compensation and interest. As the appellant herein admitted the policy under the Workmen's Compensation Act, the appellant was directed to deposit the amount of compensation together with a simple interest of 12% from the date of accident to the date of deposit. In **Harshadbhai Amrutbhai Modhiya's** case (supra) the Hon'ble Apex Court held that as long as the contract of insurance between the insurer and the insured contains no condition for indemnifying the insured in respect of the interest component as well, the insurer cannot be saddled with the liability to indemnify the insured, MFA(WCC).No.223/2010 17 towards the interest component. In this case, the first opposite party had no case that the terms of contract of insurance cover the interest component as well to make the insurer liable to indemnify him the insured for the amount towards the interest component. The specific case of the appellant herein is that in the light of the aforesaid decisions and in the absence of any specific term in the contract of the insurance making the appellant liable to indemnify the insured in regard to the interest component, the order of the Commissioner to the extent if fasten liability to pay the interest on the appellant is liable to be set aside. Though the sixth respondent received notice in this proceedings he has not chosen to enter appearance and resist the contentions. In the light of the decision in **Harshadbhai Amrutbhai Modhiya's** case (supra) and in view of the facts obtained in this case, we are inclined to uphold the contention of the appellant in regard to the said issue. Consequently, the order in W.C.C.86 of 2006 is modified to the extent it directed the second opposite party viz., the appellant herein, to deposit the amount of compensation and interest at 12% from the date of accident to the date of deposit for the principal amount. In other words, it is made clear that the appellant herein is liable to indemnify the first opposite party, the sixth respondent, only in respect of the compensation amount of Rs.2,09,611/-. As per the order, the first MFA(WCC).No.223/2010 18 opposite party was actually held liable to pay compensation as also the interest. 11. Resultantly, the order of the Commissioner is confirmed with respect to the finding that the accident had arisen out of and in the course of employment and consequently saddling the appellant herein with the liability to pay the compensation. At the same time, in view of the discussions made above, in the light of the decisions in **Harshadbhai Amrutbhai Modhiya** (supra) and **Mubasir Ahmed** (supra) it is ordered that the 6[th] respondent will be liable to pay interest awarded on the amount of compensation in terms of the impugned order. The appeal is allowed to the above extent. In the circumstances, there will be no order as to costs. Sd/- **THOTTATHIL B. RADHAKRISHNAN Judge** **Sd/C.T.RAVIKUMAR Judge** TKS