An accident arising out of and in the course of employment under the Employees' Compensation Act 1923 is not limited to the act of driving, and includes activities integral to the employee's duties.

VALMIKI J MEHTA, J.

1. This first appeal is filed u/s 30 of the Employees' Compensation Act 1923 (hereinafter referred to as 'the Act') against the impugned order of the Commissioner dated 17.5.2010 by which the Commissioner allowed the claim petition filed by the respondent Nos. 1 and 2 herein (mother and wife of the deceased employee). Appellant/Insurance Company was the respondent No. 3 before the Commissioner, and on deletion of the respondent No. 3 it became the respondent No. 2. The facts of the case are that the deceased Sh. Dalip Kumar, aged 25 years was employed as a driver for driving the tempo bearing No. DL-ILE-2777 Tata 407 owned by the respondent No. 3 herein (respondent No. 1 before the Commissioner). The deceased Sh. Dalip Kumar on the directions of the employer on 9.7.2008 at about 8.00 p.m. left to fill the vehicle with gas from the godown of M/s. Uttam Special Gases Pvt. Ltd, A-61, Okhla Industrial Area, Phase-II, New Delhi and reached there at about 9.30 p.m. The deceased Dalip Kumar parked the vehicle because the gas was to be filled at about 5.30 a.m. and he set the cylinder for filling the gas in the morning at 5.30 a.m. In the godown of the company M/s. Uttam Special Gases Pvt. Ltd. there was a blast of a gas cylinder and Sh. Dalip Kumar died on the spot. An FIR bearing No. 293 dated 10.7.2008 under Sections 286/304A was registered in the police station.

2. Before the Commissioner, the employer/respondent No. 3 appeared and conceded to the factum of employment of the deceased Sh. Dalip Kumar. The relationship of employer and employee was therefore admitted by the employer. The appellant/Insurance Company did not dispute that with respect to the vehicle in question there was a valid insurance policy for the period from 22.4.2008 to 21.4.2009 and additional insurance premium was paid for coverage under the Act. Since there was admission of relationship of employer and employee and the fact that the vehicle in question was insured with additional premium under the Act, Commissioner allowed the claim petition by applying the statutory formula.

3. The appellant/Insurance Company before the Commissioner filed the written statement denying its liability by stating that the accident cannot be said to have happened during the course of employment. This is stated by the Insurance Company in para 3 of its written statement and which reads as under:

3. That the answering respondent cannot be held responsible for the death of Sh. Dalip Kumar as he was a driver of the vehicle only. He was not driving vehicle at the time of unfortunate accident. So his death was not caused during the course of employment and arising out of employment. While the tempo was being loaded with cylinders by others, the valve of one of the cylinders got broken and Sh. Dalip Kumar who was present at the site got fatal injury on account of above which ultimately resulted in to his death. The answering respondent is not liable to pay any compensation to the dependents of deceased.

4(i) Before me, it is again similarly argued that the deceased cannot be said to have died on account of an accident happening during the course of and in relation to employment inasmuch as the deceased did not die while driving the vehicle.

(ii) In my opinion, the argument urged before me is completely and absolutely frivolous to say the least inasmuch as in the written statement it is admitted in so many words that while the subject tempo which was insured was being loaded with cylinders the valve of the cylinder got broken and the deceased Sh. Dalip Kumar who was present at the site sustained fatal injuries resulting in his death. Surely, the meaning of the expression "accident arising out of and in the course of employment" is not restricted to the fact that the driver must necessarily be driving the vehicle when accident took place. Surely, standing near the vehicle when the vehicle was being loaded with cylinders is in the part and parcel of the duties of a