Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 255

2009(2) Supreme 169
SUPREME COURT OF INDIA
(From Karnataka High Court)
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Malikarjuna G. Hiremath — Appellant
versus
The Branch Manager, The Oriental Insurance Co. Ltd. and Anr. — Respondents
Civil Appeal No. 956 of 2009
(Arising out of SLP (C). 25750/2005)
Decided on : 12-02-2009

Advocates appeared:
For the Appellant :Ms. Kiran Suri, Advocate.
For the Respondents:D. Varadarajan and Shiv Prakash Pandey, Advocates.

IMPORTANT POINT
‘Arising in the course’ of the employment is to be distinguished from what arises `out of the employment’.

Headnote:(a)Workmen Compensation Act, 1923 – Section 3(1) – Accident – The expression “accident” is used as denoting an unlooked for mishap or an untoward event which is not expected or designed (by the sufferer) – ‘Arising in the course’ of the employment is to be distinguished from what arises `out of the employment’ – The former words relate to time conditioned by reference to the man’s service, the latter to causality – Not every accident which occurs to a man during the time when he is on his employment gives a claim to compensation, unless it also arises out of the employment. (Paras 10 and 11)
       (1903) AC 448; (1914) AC 676; (2006)5 SCC 513; (1996)6 SCC 1; 1940 AC 190; 1903 AC 443; (1969)2 SCC 607; (2007)11 SCC 668 – Relied upon.
       (b)Workmen Compensation Act, 1923 – Section 3(1) – Compensation – Ingredients and principles for determination of liability of compensation restated – It must be established that the death occurred out of accident – There is no presumption that an accident had occurred. (Paras 14 and 15)
       (c)Workmen Compensation Act, 1923 – Section 3(1) – Compensation – Factors to be established for proving an accident stated – There should be a nexus between accident and employment (Para 16)
       (1964)3 SCR 930; 1953 (2) All ER 1133; AIR 1958 SC 881 – Relied upon.
       (d)Workmen Compensation Act, 1923 – Section 3(1) – Compensation – In the facts of the case the accident did not occur ‘out of employment’ – No liability. (Para 20)
       Facts of the case :
       1.The appellant was the owner of the vehicle of which the deceased was employed as a driver. Respondent No.2 (wife of the deceased) filed a Claim Petition on the following facts.
       2.Her husband Veeresh Kumar (the ‘deceased’) was working as a driver in a truck owned by the appellant. He left Siraguppa to go to Gurugunta Amreshwara Temple alongwith certain passengers as per the directions of the present appellant. When the vehicle reached Gurugunta, the deceased went to the pond and while taking bath at a pit, he had slipped and fell down and had drowned and breathed his last.
       3.The Claim Petition was filed taking the stand that the death of the deceased had occurred during the course of and within the employment under the appellant. The vehicle was the subject matter of insurance with the insurer and, therefore, it was claimed that the insurer was liable to pay the compensation as the risk of the driver was covered under the policy.
       4.The Commissioner, Bellary allowed the petition and determined the compensation payable at Rs.2,20,046/- with 12% interest.
       5.High Court allowed the appeal filed by the insurer and granted the liberty to recover the compensation awarded from the appellant.
       Finding of the Court :
       The accident did not occur ‘out of employment’.
       Result : Appeal allowed.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the Miscellaneous First Appeal filed under Section 30(1) of the Workmen Compensation Act, 1923 (in short the ‘Act’) filed by respondent No.1 (hereinafter referred to as the ‘insurer’). The insurer had challenged the award passed by the Commissioner for Workmen Compensation (hereinafter referred to as the ‘Commissioner’) in respect of the death of a driver.

3. Background facts in a nutshell are as follows:

The appellant was the owner of the vehicle of which the deceased was employed as a driver. Respondent No.2 filed a Claim Petition inter-alia stating as follows:

Her husband Veeresh Kumar (hereinafter referred to as the ‘deceased’) was working as a driver in a truck bearing No.KA 34 1183. He left Siraguppa to go to Gurugunta Amreshwara Temple alongwith certain passengers as per the directions of the present appellant. When the vehicle reached Gurugunta, the deceased went to the pond and while taking bath at a pit, he had slipped and fell down and had drowned and breathed his last. The Claim Petition was filed taking the stand that the death of the deceased had occurred during the course of and within the employment under the appellant. The vehicle was the subject matter of insurance with the insurer and, therefore, it was claimed that the insurer was liable to pay the compensation as the risk of the driver was covered under the policy. The Commissioner, Bellary by his order dated 11.7.2002 allowed the petition and determined the compensation payable at Rs.2,20,046/- with 12% interest. It was held that the insurer was liable to pay the compensation. Insurer filed an appeal before the High Court. As noted above, the stand taken by both the insurer and the appellant was that there was no connection between the accident causing death of the workman and the vehicle and, therefore, neither the insurer nor the insured had any liability to pay any compensation. The High Court allowed the appeal filed by the insurer holding that there was no casual connection and therefore the insurance company was not liable. Further, the High Court granted the liberty to recover the compensation awarded from the appellant.

4. In support of the appeal, learned counsel for the appellant submitted that the death had not been occasioned during and in course of employment. It is also not in dispute that the vehicle was the subject of insurance and the risk of the driver was covered under the policy. The High Court accepted that the driver did not die as a result of an accident involving the vehicle. But the vehicle was taken by the deceased in the course of employment at the behest of the present appellant to the temple. The ultimate question according to the High Court was when the driver was taking a bath at the pond and gone there, the death had occurred out of an accident arisen out of and in the course of his employment. The High Court noted that there was no casual connection between the accident causing the death and the vehicle. The High Court also noted that since there was no such casual connection, the insurer would not be liable in terms of the policy as the vehicle which was the subject matter of insurance was not involved in the accident and the insurer had no liability.

5. Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous. After having held that there was no casual connection between the death and the employment of the workman and after exonerating the insurer, the High Court should not have directed claimant to recover the amount from the present appellant.

6. Learned counsel for the insurer submitted that it has no liability in view of what is stated in Section 147 (1)(b) (i) of Motor Vehicles Act, 1988 (in short ‘M.V. Act’).

7. There is no appearance on behalf of respondent No.2.

8. Section 3(1) of the Act which is relevant for

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2009 Supreme(SC) 255

IMPORTANT POINT ‘Arising in the course’ of the employment is to be distinguished from what arises `out of the employment’.

Cases Referred (6)

IMPORTANT POINT
‘Arising in the course’ of the employment is to be distinguished from what arises `out of the employment’.