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CASE NO.: Appeal (civil)  1269 of 2008

PETITIONER: Oriental Insurance Company Ltd.

RESPONDENT: Sorumai Gogoi & Ors.

DATE OF JUDGMENT: 14/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No.6932 of 2007]

S.B. Sinha, J.

1.      Leave granted. 2.      Bipul Gogoi was appointed as a Driver of a vehicle bearing  Registration No.AS-09/2289 by the third respondent.  He reported to his  duty at about 9.30 am on 9.10.1996.  He was since then not heard by the  members of his family or by his employer. 3.      The Officer In-charge of the Bokajan Police Station registered a case  against Bipul Gogoi.  A charge-sheet was filed in connection with the said  case before the Judicial Magistrate stating that the Driver has absconded  with the vehicle on 23.7.1999.   4.      First and second respondents herein, being the parents of the said  Bipul Gogoi, filed an application under the Workmen Compensation Act,  1923 (the 1923 Act) for payment of compensation for a sum of Rs.4,48,000/-  before the Commissioner of Workmen Compensation, Golaghat for death of  their son in course of his employment.  Notices were issued to the appellant.   It denied and disputed the said claim, inter alia, contending that no  compensation in terms of the Workmen Compensation Act was payable,  only on a presumption that the said Bipul Gogoi had died.  The owner of the  vehicle being the third respondent, however, contended that some miscreants  have taken away the vehicle with the driver which could not be searched out  by the Police.        The vehicle was not traced.  No dead body was found.  Whether the  said Bipul Gogoi had died or still alive is not certain.        The Commissioner, Workmen Compensation, in view of the reival  contentions of the parties, framed two issues.        On issue No.1, it was held : \023I have gone through the evidence on record.  The  DW-1 Sri Jayanta Madhab Dutta categorically  stated that he investigated the incident.  He  enquired about the incident in the locality where  the driver had lived.  He disclosed the names of  neighbourers of the claimant.  All the persons are  residing in front, left and right hand side of the  claimant\022s residence.  All of them had spoken that  they have not seen the driver since long back.   From the above discussion, on the evidence of the  Investigator it is proved that the driver never seen  by the people of that locality from the date of  incident.  The driver is not traced since 8.10.1996  till date, i.e., more than seven years.  Therefore, in  view of Section 108 of evidence Act, it is  presumed that the driver is dead.  Therefore, the

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claimant is entitled to get compensation under the  provisions of Workmen\022s Compensation Act.   Therefore, the issue No.1 is answered in favour of  the claimant.\024

5.      On issue No.2, the Commissioner, without there being any materials  on record and only upon drawing a presumption on the basis of ection 108 of  the Indian Evidence Act that the said Bipul Gogoi must have died, held : \023It is proved that the deceased was a workman and  he died as a result of injuries sustained in an  incident/accident arising out of and in course of his  employment.  Therefore, the claimant is entitled to  get compensation.\024

6.      The Commissioner awarded a sum of Rs.2,24,000/- against the  appellant herein, opining : \023It is admitted fact that Bipul Gogoi was the paid  driver of vehicle No.AS-09/2289 (Maruti Van)  employed by the opposite party No.1.  It is also  proved that the said driver and vehicle is  untraceable from the date of incident (9.10.1996)  till date.  At the time of incident/accident he was  on duty.  Now the question came for decision that  whether Bipul Gogoi is dead or alive?  The learned  counsel for the claimant argued that the driver is  murdered by the miscreants at the time of taken  away the said vehicle on the other hand, the  learned counsel for the opposite party Insurance  Company advanced his argument that proof of  death is necessary.\024

7.      An appeal was preferred thereagainst by the appellant before the High  Court in terms of Section 30 of the 1923 Act.   8.      By the impugned judgment, the High Court has dismissed the said  appeal, opining : \023The learned commissioner while deciding the  issue No.1 has considered and approved the  statement of the claimant as well as DW1 in favour  of the appellant and on such assessment and  appreciation, the learned commissioner has come  to the finding that the driver has not been traced  since 9.10.1996, till date i.e. more than seven years  and presumption of the death of the driver.  Under  Section 108 of the Evidence Act, I am of the  considered opinion the aforesaid finding of the  learned Commissioner cannot be said to be unjust,  unreasonable and unwarranted on facts.         Regarding the submission of Mr. Ahmed  that the accident took during the course and out of  employment of the driver also belies the facts of  the statement made on the pleadings of the owner  of the vehicle that apart the FIR that was registered  in the Bokajan Police Station on which heavy  reliance has been laid by the same also belies the  contention.\024

9.      The High Court in the impugned judgment took note of the fact that a  first information report was lodged as against the said Bipul Gogoi under  Sections 420 and 406 of the Indian Penal Code.  It furthermore took notice  of the fact that the police having found a prima facie case against him,  submitted a charge sheet and there was no other evidence to show that he  had expired and, if so, under what circumstances. 10.     Dr. Meera Agarwal, learned counsel appearing on behalf of the

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appellant, submitted : 1.      The contract of insurance in terms of the proviso appended to Section  27 of the Motor Vehicles Act being confined to a death or an injury  suffered by a workman, the impugned award awarding a  compensation for a sum of Rs.2,24,000/- is unsustainable in law,  occurrence of any accident in course of employment, has been proved. 2.      Death or bodily injury suffered by the workman was a sine qua non  for entertaining a claim petition under the Workmen Compensation  Act and, thus, in absence of proof of death of the said Bipul Gogoi,  the impugned judgments are wholly unsustainable.   11.     The 1923 Act was enacted to provide for payment of certain classes of  employers to their workmen compensation for injury caused by accident.  The said Act does not provide for a mandatory insurance policy to be taken  by an employer.        A dependent has been defined by Section 2(d) to mean the relative(s)  of a deceased workman specified therein including a widow mother. 12.     Section 3 of the Act provides for the employer\022s liability for  compensation; sub-section (1) whereof reads as under : Section 3.\027Employer’s liability for  compensation.\027(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.\024

13.     Proviso appended thereto provides for exclusion of the liability of the  employer as specified therein.   14.     Section 4 of the 1923 Act provides for payment of the amount of  compensation.  15.     Section 147 of the Motor Vehicles Act, 1988, however, mandatorily  provides for obtaining insurance cover by the owner of a vehicle.  Proviso  appended thereto reads as under : \023Provided that a policy shall not be required\027

(i)     to cover liability in respect of the death,  arising out of and in the course of his  employment, of  the employee of a person  insured by the policy or in respect of bodily  injury sustained by such  an employee  arising out of and in the course of his  employment other than a liability arising   under the Workmen’s Compensation Act,  1923 (8 of 1923) in respect of the death of,  or bodily  injury to, any such employee\027 (a)     engaged in driving the vehicle, or (b)     if it is a public service vehicle  engaged as conductor of the vehicle  or in examining  tickets on the  vehicle, or (c)     if it is a goods carriage, being carried  in the vehicle, or (ii)    to cover any contractual  liability.\024

16.     The sine qua non for invoking the proviso appended to Section 147 is   that the employee must be engaged in driving the vehicle.  Death or bodily  injury must occur arising out of or in the course of his employment.  The  1923 Act or the 1988 Act, therefore, would be applicable only if the  conditions precedent laid down thereunder are satisfied.   18.     The employer lodged a first information report against Bipul Gogoi.   A charge sheet was also filed.  There is nothing on record to show that the  death had occurred to Bipul Gogoi in an accident arising out of or in course  of employment.  If some miscreants have taken away the driver along with  the vehicle or has murdered him, it is an offence.  It, except in certain

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situations, does not give rise to a presumption that the death had occurred  arising out or in the course of an employment.  Some evidence should have  been adduced in that behalf.  If the version brought on records by the police  was correct, namely, he had himself ran away with the vehicle and had not  been heard for a period of seven years, particularly, when he had been  declared a proclaimed offender by a Court of law, presumption under  Section 108 of the Evidence Act could have been invoked by the criminal  court for dropping the criminal case that he is dead.  In our opinion, in a case  of this nature, the said provisions could not have been invoked for the  purpose of grant of compensation under the 1923 Act without any other  evidence having been brought on records.        Sections 108 and 109 of the Evidence Act are founded on the  presumption that things once proved to have existed in a particular state are  to be understood as continuing in that state until contrary is established by  evidence either direct or circumstantial.  The said provision can be invoked  in a legal proceeding by the death of a person may be an issue.  The Section  does not say that presumption would be applicable in all situations.  It shall  not apply in respect of a person who absconds from justice nor evade a trial  or is otherwise charged for commission of a grave offence as he in that  situation may not communicate with his relations.  Furthermore in a case of  this nature, it is also difficult to rely upon a self serving statements made by  the claimants that they had not heard of their son for a period of seven years.   The Commissioner of Workmen Compensation or the High Court did not  assign any reason as to why the fact disclosed in the charge sheet which was  filed upon investigation that Bipul Gogoi himself had run away with the  vehicle would not be a relevant fact, particularly, when cognizance had been  taken by a competent court of law on the basis thereof.        Section 3 of the 1923 Act would be attracted only when the conditions  precedent therefor are fulfilled and not otherwise.   19.     The view which we have taken find support from a judgment of this  Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak  [(1969) 2 SCC 607], holding : \023To come within the Act the injury by accident  must arise both out of and in the course of  employment. The words \023in the course of the  employment\024 mean \023in the course of the work  which the workman is employed to do and which  is incidental to it.\024 The words \023arising out of  employment\024 are understood to mean that \023during  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.\024 In  other words there must be a causal relationship  between the accident and the employment. The  expression \023arising out of employment\024 is again  not confined to the mere nature of the  employment. The expression applies to  employment as such \027 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 \021out of employment\022.\024

20.     In Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC  513] also this Court held : \0236. Under Section 3(1) it has to be established that  there was some causal connection between the death  of the workman and his employment. If the  workman dies as a natural result 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

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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.    7. The expression \023accident\024 means an untoward  mishap which is not expected or designed. \023Injury\024  means physiological injury. In Fenton v. Thorley &  Co. Ltd. it was observed that the expression  \023accident\024 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 as follows:  \023I think that the context shows that in using the  word \021designed\022 Lord Macnaghten was referring to  designed by the sufferer\024.\024   21.     Furthermore, the rights of the parties were required to be determined  as on the date of the incident, namely, 9.10.1996.  It is, therefore, difficult to  hold that a subsequent event and that too by raising a presumption in terms  of Section 108 of the Evidence Act can give rise to fructification of claim,  save and except in very exceptional cases. 22.     In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999)  8 SCC 254], this Court held : \023Thus, the relevant date for determination of the  rate of compensation is the date of the accident and  not the date of adjudication of the claim.\024

{[See also Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10  SCC 567]}. 23.     For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  The appeal is allowed.  However, as  nobody has appeared on behalf of the respondent, there shall be no order as  to costs.