The Manager, Valparai Estate, Old Valparai (P.O) Valparai v. Smt. Alamelu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:07-11-2008CORAMTHE HONOURABLE MR.JUSTICE S. PALANIVELUC.M.A.(NPD)No.2735 of 2002The Manager,Valparai Estate,Old Valparai (P.O)Valparai ... Appellant / Opposite Party vs.Smt. Alamelu ... Respondent / ApplicantCivil Miscellaneous Appeal is filed under Section 30 of Workmen'sCompensation Act, 1923, against the order dated 30.07.2002 and madein W.C.C.No.64 of 2001 on the file of the Deputy Commissioner ofLabour, Commissioner for Workmen's Compensation, Coimbatore.For appellant : Mr. K.M. Vijayan Senior Counsel for M/s King & Partridge For respondents : Mr.S.M. Ravichandran **** J U D G M E N T1. The following are the allegations found in the claim petition:1. (i) Nallaiah, a workman employed by the Opposite Party,received personal injury by accident arising out of and in the courseof his employment, resulting in his death on the 16th day of February2001. While he was in his house a wild elephant attacked him, who hesustained injury and died in the Tata Tea Central Hospital, Urulikal.The claimant is his wife and dependent. The monthly wage of thedeceased was Rs.2,000/- and he was 55 years at the time of his death.Hence a sum of Rs.1,35,560/- + Rs.1,000/- is claimed.2. In the counter statement filed by the Opposite Party, it isstated as under: An employer is liable for compensation only if personal injuryis caused to a workmen by accident arising out of and in the courseof his employment. In the present case Nalliah was attacked by a wild https://hcservices.ecourts.gov.in/hcservices/ elephant, while he came out of his house on hearing a noise fromoutside. Unfortunately, the elephant that was standing in front ofhis house, attacked him. Nalliah immediately rushed to the Tata TeaCentral Hospital, where he expired an hour later. The said accidentdid not occur during the course of or out of his employment and hencethis opposite party is not liable for payment of compensation, sinceit is admitted that the accident occurred outside Nalliah's house andit did not take place during the course of and out of employment.The average monthly wages of the deceased worked is only Rs.1,833.34and not Rs.2,000/-. Hence, the petition has to be dismissed.3. After considering the oral evidence on record and the factsavailable, the District Labour Commissioner, Coimbatore, reached aconclusion that Nalliah died in the course of and out of hisemployment under the opposite party and his wife is eligible to getcompensation of Rs.12,34,667/- from the opposite party.4. While admitting the civil miscellaneous appeal, this Courtframed the following substantial questions of law:-“1.Whether the alleged accident arise out of and inthe course of employment of the deceased under theappellant?2.Whether the employer is liable to pay workmen’scompensation for any accident occurred to a workmen whilehe was residing in the accommodation provided by theemployer after his duty hours, other than an accident dueto collapse of the house or as a result of a naturalcalamity not on account of the fault on the part of anyoccupant of the house?3.Whether on the facts and circumstances of the casereasoning and findings of the Commissioner for WorkmenCompensation are perverse?”5. Learned counsel for the appellant would argue in vehemencethat the authority below has not considered the import of therequirements of concerned provisions of law, but has decided that theaccident occurred in the course of and out of employment which ispalpably wrong and that the settled principles would enlighten theCourt that the attending circumstances should have been considered inthe light of the legal consequences of the provisions.6. Conversely, learned counsel for the respondent/claimantMr.S.M. Ravichandran would contend that it is an admitted fact thathaving provided residential quarters to the worker Nalliah as per thespecial statutes, the responsibility saddled upon the appellant bythe authority is proper. https://hcservices.ecourts.gov.in/hcservices/

7. Concedingly on 16.02.2001, at 10.00 p.m. while Nalliah wasinside the house, he came out from the house on hearing a noiseoutside and saw a wild elephant standing, which attacked him andthereby caused him injury. He was rushed to the hospital where hebreathed his last. It is the bottomline contention of the respondentthat residing in the residential quarters provided by the employer inview of his employment which is incidental to his employment whichwould qualify the victim or his dependents to get compensation foremployment injury. Repelling this argument, it is stated by theappellant that every accident could not be brought under the purviewof the "accident occurred in the course and out of employment" andthe present accident could not at all be considered to be anaccident, which would not make the employer liable for payment ofcompensation.8. As per section 15 of Plantations Labour Act, 1951, it isincumbent upon every employer to provide and maintain necessaryhousing accommodation to every worker (including his family) residingin the plantation and outside the plantation who has put in sixmonths of continuous service in such plantation.9. Section 16-A of the Plantations Labour Act 1951 provides asfollows:"16-A. Liability of employer in respect of accidentsresulting from collapse of houses provided by him –(1) If death or injury is caused to any worker or amember of his family as result of the collapse of ahouse provided under Section 15, and the collapse isnot solely and directly attributable to a fault on thepart of any occupant of the house or to a naturalcalamity, the employer shall be liable to paycompensation."10. Rule 43 of Tamil Nadu Plantations Labour Rules 1955 wouldmake employer responsible to provide housing accommodation as nearlyas possible to the place of work.11. As per Section 16-A of Plantations Labour Act, 1951, theaccident should not be attributed to either the negligence or the actof the workmen but it should be the outcome of collapse of the houseor to a natural calamity. Whether an attack by an elephant could betreated to be a natural calamity is to be decided.12. Learned counsel for the appellant would draw attention ofthis Court to a Larger Bench decision of Honourable Supreme Courtreported in 1 LLJ 48 [The Regional Director, E.S.I. Cor. & Anr. vs.Francis De costa & Anr] wherein Their Lordships dealt with thesituation, wherein an accident took place while the employee wasgoing by bicycle from his house to the factory, which occurred 15 https://hcservices.ecourts.gov.in/hcservices/ minutes before commencement of duty shift of the employee and he washit by a lorry belonging to his employer himself. After referring tothe earlier decisions of the Supreme Court and U.S. Supreme Court,the Apex Court concluded that in the facts of the case it cannot besaid that the injuries suffered by the workman one kilometer awayfrom the factory while he was proceeding to factory was caused by anaccident arising out of and in the course of employment. Settlingthe law on the subject, the Supreme Court has held as follows:"29. Although the facts of this case are quitedissimilar, the principles laid down in this case areinstructive and should be borne in mind. In order tosucceed it has to be proved by the employee that (1)there was an accident (2) the accident had a casualconnection with employment and (3) the accident musthave been suffered in course of employment. In thefacts of this case we are of the view that the employeewas unable to prove that the accident had any casualconnection with the work he was doing at the factoryand in any event it was not suffered in the course ofemployment."13. While their Lordships referring to an earlier decision of theSupreme Court in 1958-II-LLJ-249 [Saurashtra Salt Manufacturing Co.v. BaiValu Raja] have extracted the very sentence as found in thedecision, which reads as follows:-"It is well settled that when a workman is on apublic road or public place or on a public transporthe is there as any other member of the public and isnot there in the course of his employment unless thevery nature of his employment makes it necessary forhim to be there. A workman is not in the course ofhis employment from the moment he leaves his home andis on his way to his work. He certainly is in thecourse of his employment if he reaches the place ofwork or a point or an area which comes within thetheory of notional extension, outside of which theemployer is not liable to pay compensation for anyaccident happening to him."14. Considering the above said observation the Supreme Court hasobserved that,"In our view, this cannot be a ground fordeparting from the principle laid down by theaforementioned cases that the employment of theworkman does not commence until he has reached theplace of employment, what happens before that isnot in course of employment." https://hcservices.ecourts.gov.in/hcservices/

15. It is also held thus in 1 LLJ 48 [The Regional Director,E.S.I. Cor. & Anr. vs. Francis De costa & Anr]"If the employee's work shift begins at 4.30P.M. Any accident before that time will be "in thecourse of employment". The journey to the factorymay have been undertaken for working at the factoryat 4.30 P.M. But this journey was certainly not incourse of employment. If "employment" begins fromthe moment the employee sets out from his house forthe factory, then even if the employee stumbles andfalls down at the door-step of his house, theacident will have to be treated as to have takenplace in the course of his employment. Thisinterpretation leads to absurdity and has to beavoided."16. It is further observed in the above said decision that if theemployee met with an accident while riding in his bicycle on the wayto his place of work, it cannot be said that the accident wasreasonably incidental to the employment and was in the course of theemployment. Hence it is bounden duty of the employee to show thatthe accident took place during the course of and out of hisemployment and there must be a casual connection between theemployment and the injury.17. Learned counsel for the appellant would also garner supportfrom a decision of Supreme Court reported in CDJ 2006 SC 518 [JyothiAdemma vs. Plant Enginner, Nellore & Another] in which it is heldthat under Section 3(1) of the Workmen's Compensation Act, it has tobe established that some casual connection between the cause of deathof the workman and his employment and that the expression "accident"means an untoward mishap which is not expected or designed. It isnot only the proof required is that the accident has arisen in thecourse of employment, but it should be shown that it was out ofemployment also.18. Learned counsel for the appellant also cites a decision ofAndhra Pradesh High Court in 2003 FJR 583 [Mummidipalli Syamaladeviv. Regional Director, Employees' State Insurance Corporation andothers] in which it is held that employment of a workman does notcommence until he has reached the place of employment and does notcontinue when he has left the place of employment, the journey to andfrom the place of employment being excluded. In the said case themachine operator in the factory died in the quarters provided by themanagement of the third respondent due to electric shock. Turningdown the plea of the claimant, the High Court of Andhra Pradeshdecided that there was no connection between the cause of the deathof the employee and his employment as mechanic in the factory. https://hcservices.ecourts.gov.in/hcservices/

19. The Appellant side also draws attention of this Court toanother decision of Supreme Court JT 2008 (6) SC 427 [Usha BrecoMazdoor Sangh v. Management of M/s Usha Breco Ltd., & Anr.] in whichit is decided as follows:"It may not be a correct approach for asuperior court to proceed on the premise that an Actis a beneficent legislation in favour of theManagement or the workmen. The provisions of thestatute must be construed having regard the tenor ofthe terms used by the Parliament. The court mustconstrue the statutory provision with a view touphold the object and purport of the Parliament. Itis only in a case where there exists a grey area andthe court feels difficulty in interpreting or inconstruing and applying the statute, the doctrine ofbeneficent construction can be taken recourse to.Even in the cases where such a principle is resortedto, the same would not mean that the statute shouldbe interpreted in a manner which would take itbeyond the object and purport thereof." 20. Learned counsel for the claimant gathered support from thedecision of a Division Bench of this Court 2007-I-L.w. 249[Management of Pachamalai Estate, Valparai v. Smt. Mani] in which anemployee while doing work in a drench, had chest pain and diedthereafter and the Commissioner for Workmen Compensation finding himdied due to stress and strain and the nature of the work hadaccelerated his death and held that the employer was liable to paycompensation. The Division Bench of this Court dismissed the appealfiled by the employer. But in the present case on hand there is noplea that the employee died due to stress and strain. 21. Learned counsel for the respondent also relied upon anotherDivision bench Decision of this court in 2003 vol.102 FJR 90[Divisional Manager, United India Insurance Co. Ltd., v. T. ShanmugaMudaliar and others], wherein the learned Judges finding in favour ofthe claimants by observing that it may not be possible at all timesto produce direct evidence of the connection between the employmentand the injury, but if the probabilities are more in favour of theclaimant then the Commissioner for Workmen's Compensation isjustified in inferring that the accident did in fact arose out of andin the course of employment. In this decision learned Judges havefollowed the Principles formulated by the Supreme Court which are asfollows: "In Mackinnon Mackenzie and Co. Private Ltd.,v. Ibrahim Moahmmed Issak [1970] I Llj 16; [1970]Lab IC 1413; AIR 1970 SC 1906 (vol. 3, CN 313) the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court held that (page 1908):"to come within the act, ... there must be acasual relationship between the accident and theemployment. The expression 'arising out of theemployment' is again not confined to the mere natureof the employment. The expression applies toemployment as such – to its nature, to itsconditions, its obligations and its incidents. Ifby reason of any of those factors the workman isbrought within the zone of special danger, theinquiry would be one which arises 'out ofemployment'. To put it differently, if the accidenthad occurred on account of a risk which is anincident of the employment, the claim forcompensation must succeed, unless, of course, theworkman has exposed himself to an added peril by hisown imprudent act."And again in the same judgment, the SupremeCourt said (page 1909):"In the case of death caused by accident theburden of proof rests upon the workman to prove thatthe accident arose out of employment as well as inthe course of employment. But this does not meanthat a workman who comes to court for relief mustnecessarily prove it by direct evidence... It may beinferred when the facts proved justify theinference... It is of course impossible to lay downany rule as to the degree of proof which issufficient to justify an inference being drawn, butthe evidence must be such as would induce areasonable man to draw it." 22. Hence as per the decision of the Supreme court, it should beestablished that if an accident had occurred on account of a riskwhich is an incident to the employment, the claim for compensationmust succeed unless the workman as exposed himself to an added perilby his own imprudent act.23. Learned counsel for the appellant also draws attention ofthis Court to a judgment rendered by a learned single judge of thisCourt in C.M.A.720 of 2001 dated 2.1.2008 wherein identical facts areavailable that the worker, residing in the residential quartersprovided by the employer, was stated to have been attacked by a wildelephant and it was decided that the accident took place in thecourse of and out of employment. The staying of workman in theresidential quarters of estate is an incident of employment asplantation worker and that the accident occurred in the midnight https://hcservices.ecourts.gov.in/hcservices/ while the deceased worker was staying in the residential quarters ofemployment, which certainly arose out of and in the course ofemployment, it was further held.24. In order to succeed to get compensation, the following testshave to be passed by the evidence adduced on behalf of thevictim/claimant, as per decision in Francis De Coasta Case (citedsupra)1. There was an accident 2. The accident had a causal connection with the employment and 3. the accident must have been suffered in the course ofemployment.25. Residing in the residential quarters provided to the workerby the employer as per the Plantations Labour Act,1951 is incidentalto the employment. Had the worker not employed in the plantation, heneed not have resided in the residential quarters provided by theemployer. In order to perform the statutory obligation, the employeroffers residence for the plantation labourers. Unlike otheremployees, a plantation labour is expected to stay in the housefurnished by his employer in order to attend to his work promptly andin appointed time. He could not be expected to reside elsewherewhich is far away from the estate, where he is working. To put itdifferently, only on account of nature of his employment in theestate, the worker stays in the house afforded by his employer. Inthis context, there is no impediment for the Court to infer thatstaying in the house allotted by the employer has got nexus with theemployment and if any accident took place resulting in employmentinjury to the worker or any danger to his life, it ought to be heldthat he suffered the injury in the course of and out of employment,even though he is not at all physically present in the place ofemployment during the shift earmarked for him.26.The evidence on record on behalf of the claimant has easilypassed the tests formulated by the Supreme Court as aforementioned.As for the facts involved in Francis De Costa’s case (cited supra),the worker left the house and was on the way to his place ofemployment and the same was about one Km away from the accident. Theaccident took place at 4.15 p.m. while his duty was to commence from4.30 p.m. He suffered injuries. Their Lordships were of the opinionthat the accident cannot be said to have arisen out of employment,unless it may be shown that the employee was doing somethingincidental to his employment. The facts in the present case aredistinguishable.27.In the case before the Supreme Court, the worker was on theway to his place of employment, while in this case, the worker wasstaying in house at odd hours. He got frightened by a noise and cameout from the house which is a natural act of an individual in anormal circumstance and thereafter, he met with the accident. https://hcservices.ecourts.gov.in/hcservices/

28.While applying the above said principle to the facts of thepresent case, the staying of worker in the residents arranged by theemployer is incidental to his employment. It could be observed thatthe accident had taken place out of employment and in the course ofemployment. The facts of the case on hand are also distinguishable. 29. In Ibrahim Moahmmed Issak’s case (cited supra), the ApexCourt is of the view that if the accident had occurred on account ofa risk which is incidental to an employment, the claim ofcompensation must succeed, unless of course, the workmen has exposedhimself to an added peril by his imprudent act. Two requirements havebeen codified by the Apex Court in this judgment which are asfollows:-1.Whether accident occurred on account of a risk which isincidental to the employment?2.The workmen, who not exposed himself to an added perilby his own imprudent Act.30. As regards this case, as already observed, staying of anworkmen in the house granted by an employer is an incidental to hisemployment and he was exposed to the risk, not by any of hisimprudent act but as a common man of diligence, he came out from thehouse to know what happened outside. Hence, the claimants case hasgone through these tests too.31. The Andhra Pradesh High Court in Mummidipalli Syamaladevi’scase (cited supra) has followed the decision of the Apex Court in AIR1958 Supreme Court 881 [1958-59] 14 FJR 351 [Saurashtra SaltManufacturing Co. v. BaiValu Raja]. In that decision, it has beenheld that as a rule, the employment of an workman does not commenceuntil he reached the place of employment and does not continue whenhe left the place of employment. The facts of the case areotherwise. The accident took place during night hours and it is tobe noted that staying in the house itself is incident to the natureof his employment and hence, no question of his journey to his shiftphysically in the estate would arise.32. The facts and circumstances of each case will have to beanalysed and examined cautiously on its own merits to determinewhether the accident arise out of and in the course of employmentkeeping in view the ratio laid down by the Supreme Court.33. In the light of what are stated above, this Court is of theconsidered view that the employer is liable to pay compensation asthe accident occurred out of and in the course of employment andaward passed by the Deputy Commissioner of Labour, Coimbatore doesnot suffer from infirmity and the same is confirmed. There is no https://hcservices.ecourts.gov.in/hcservices/ need to dislodge the above observation of the authority below.Infine, this Civil Miscellaneous Appeal is dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarggs/ssmTo1. The Deputy Commissioner of Labour, (Commissioner for Workmen Compensation), Coimbatore.2. The Section Officer, VR Section, High Court, Madras.C.M.A.(NPD)No.2735 of 2002 JSV(CO)SRA(26/11/2008)