REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO    956       OF 2009 (Arising out of SLP (C) 25750/2005)

Malikarjuna G. Hiremath ...Appellant

Versus

The Branch Manager, The Oriental  Insurance Co. Ltd. and Anr. ...Respondents

J U D G M E N T  

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

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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

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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.

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

reads as follows:-

“3.  EMPLOYER'S  LIABILITY  FOR COMPENSATION. - (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  or permanent  total  disablement,  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 willful disobedience of the workman to an order expressly  given,  or  to  a rule  expressly framed,  for  the purpose of securing the safety of workmen, or  

(iii) the willful 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.”  

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9. Under Section 3(1) it has to be established that there was some casual

connection between the death of the workman and his employment.  If the

workman dies a natural death because of the disease which he was suffering

or while suffering from a particular disease he dies of that disease as a result

of wear and tear of the employment, no liability would be fixed upon the

employer. But if the employment is a contributory cause or has accelerated

the death, or if the death was due not only to the disease but also the disease

coupled with the employment, then it can be said that the death arose out of

the employment and the employer would be liable.   

10. The expression “accident” means an untoward mishap which is not

expected or designed.  “Injury” means physiological  injury.  In  Fenton v.

Thorley & Co. Ltd. (1903)  AC 448,  it  was observed that  the expression

“accident” is used in the popular and ordinary sense of the word as denoting

an unlooked  for  mishap or  an  untoward  event  which  is  not  expected  or

designed.  The above view of Lord Macnaghten was qualified by the speech

of Lord Haldane A.C. in Trim Joint District, School Board of Management

v. Kelly (1914) A.C. 676 as follows:   

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“I think that  the context  shows that in using the word  “designed”  Lord  Macnaghten  was  referring  to designed by the sufferer”.

11. The above position was highlighted by this Court in Jyothi Ademma

v. Plant Engineer, Nellore and Anr. (2006 (5) SCC 513).  

12. This  Court  in  ESI Corpn. v.  Francis  De Costa (1996  (6)  SCC 1)

referred to, with approval, the decision of Lord Wright in Dover Navigation

Co. Ltd.  v.  Isabella  Craig (1940 AC 190)  wherein  it  was held:  (All  ER

p. 563 )

“Nothing could be simpler than the words ‘arising out of and  in  the  course  of  the  employment’.  It  is  clear  that there are two conditions to be fulfilled. What arises ‘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—that  is,  directly or  indirectly engaged on what  he  is  employed  to  do—gives  a  claim  to compensation,  unless  it  also  arises  out  of  the employment.  Hence  the  section  imports  a  distinction which  it  does  not  define.  The  language  is  simple  and unqualified.”

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13. We are not oblivious that an accident may cause an internal injury as

was held in Fenton (Pauper) v. J. Thorley & Co. Ltd. (1903 AC 443) by the

Court of Appeal:

“I come, therefore, to the conclusion that the expression ‘accident’ is used in the popular and ordinary sense of the  word  as  denoting  an  unlooked-for  mishap  or  an untoward event which is not expected or designed.”

Lord Lindley opined:

“The word ‘accident’ is not a technical legal term with a clearly  defined  meaning.  Speaking  generally,  but  with reference  to  legal  liabilities,  an  accident  means  any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the  cause  is  not  known  the  loss  or  hurt  itself  would certainly be called an accident.  The word ‘accident’ is also often used to denote both the cause and the effect, no  attempt  being  made  to  discriminate  between  them. The  great  majority  of  what  are  called  accidents  are occasioned by carelessness;  but for legal purposes it  is often  important  to  distinguish  careless  from  other unintended and unexpected events.”

14. There are a large number of English and American decisions, some of

which have been taken note of in  ESI Corpn  .  ’s   case (supra) in regard to

essential ingredients for such finding and the tests attracting the provisions

of Section 3 of the Act. The principles are:

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(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3)  If  the  evidence  brought  on  records  establishes  a  greater probability  which  satisfies  a  reasonable  man  that  the  work contributed to the causing of the personal injury, it would be enough  for  the  workman  to  succeed,  but  the  same  would depend upon the fact of each case.

15. An accident may lead to death but that an accident had taken place

must  be  proved.  Only  because  a  death  has  taken  place  in  course  of

employment will not amount to accident. In other words, death must arise

out of accident. There is no presumption that an accident had occurred.

16. In a case of this nature to prove that accident has taken place, factors

which would have to be established, inter alia, are:

(1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain.

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17. In  G.M.,  B.E.S.T.  Undertaking v.  Agnes (1964  (3)  SCR  930)

referring  to  the  decision  of  the  Court  of  Appeal  in  Jenkins v.  Elder

Dempster     Lines   Ltd. (1953 (2) All ER 1133) this Court opined therein that a

wider  test,  namely,  that  there  should  be  a  nexus  between  accident  and

employment was laid down. It also followed the decision of this Court in

Saurashtra Salt Mfg. Co. v. Bai Valu Raja (AIR 1958 SC 881)

18. In  Mackinnon  Mackenzie  & Co.  (P)  Ltd. v.  Ibrahim Mohd.  Issak

(1969 (2) SCC 607), this Court held:  

“5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of the  employment’ mean ‘in the course of the work which the workman is employed to do and which is incidental to it’. The words ‘arising out of employment’ are understood to mean that ‘during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to  believe  the  workman  would  not  otherwise  have suffered’.  In  other  words  there  must  be  a  causal relationship between the accident  and the employment. The expression ‘arising out of employment’ is again not confined  to  the  mere  nature  of  the  employment.  The expression 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  special  danger  the injury would  be one  which  arises  ‘out  of  employment’.  To  put  it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim

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for  compensation  must  succeed,  unless  of  course  the workman has exposed himself to an added peril by his own imprudent act.”  

19. The above position was again highlighted in Shakuntala Chandrakant

Shreshti v. Prabhakar Maruti Garvali and Anr. (2007 (11) SCC 668).

20. It is the specific case of the claimants that on 30.11.2000 the deceased

who was driving the vehicle  on the direction of the insured had gone to

Gurugunta from Siraguppa.  There he had gone to a temple and was sitting

on the steps of the pond in the temple and he slipped and fell into the water

and died due to drowning. This according to us is not sufficient in view of

the legal principles delineated above to fasten liability on either the insurer

or the insured.  The High Court was not justified in holding that the present

appellant was liable to pay compensation.  

21. The appeal is allowed with no order as to costs.     

…………………………………….J. (Dr. ARIJIT PASAYAT)

……………………………………J.

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(ASOK KUMAR GANGULY) New Delhi, February 12, 2009

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