E S I CORPN Vs. CHELLAPPAN

JUDGEMENT

(1.) Appeal, at the instance of the E.S.I. Corporation, is against the judgment of the E.I., Court, Alappuzha in I. C. 67/95. Respondents, who are the father and mother of late C.P. Baiju, filed the application for a declaration that the fatal injury sustained by Baiju was the result of the employment injury caused during the course of his employment and in view of that, applicants are entitled for dependants benefits. The E.I. Court allowed the claim. Aggrieved by the above, the Corporation has come up in appeal.

(2.) The fact that Baiju was employed as a toddy tapper attached to T. S. 33 at Mattathiveli and he was a covered employee under the E.S.I. scheme, is not disputed. The contention raised by the appellant is that the death of Baiju did not occur out of the employment and therefore applicants are not entitled to any benefit. Baiju, while on his way to do tapping, was attacked by certain persons on 17.1.1994 and as a result of the injuries, he died. Appellant would contend that the cause for the attack on Baiju was personal animosity between him and those who attacked him. Therefore, it cannot be contended that his death was caused out of employment. In support of the above contention, learned counsel for the appellant placed reliance on a Full Bench decision of the Allahabad High Court in Mst. Abida Khatun v. General Manager, Diesel Locomotive, Varanasi, 173 Lab. I. C. 666. It was held there in that even if the workman met with the accident in the course of his employment, unless it is proved that the accident arises out of employment, no claim would lie by the dependants. There must be evidence to connect the death of the workman with his employment. If he was killed by a person out of personal animosity, wholly unconnected with the employment, it cannot be taken that the accident arises out of the employment. On this aspect, the Full Bench dissented from an earlier decision of the Bombay High Court in Bhagubai v. General Manager, Central Rly., AIR 1955 Bombay, 105. Bombay decision was rendered by Chagla, C. J.. It was held that law did not place the additional burden upon the claimant to prove that the accident which arose because of a peril which was not personal to him but was shared by all the employees or the members of the public and once a proximate connection is established between the employment and the injury, the claimant has discharged the burden and the proximate connection between the employment and the injury was the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death.

(3.) As far as this Court is concerned, there are two Bench decisions on this point, 1979 KLT 97 (Varkeyachan v. Thomman) and 1996 (1) KLT 423 (United India Insurance Co. Ltd. v. Philo). This Court had agreed with the principle evolved by Chagla, C. J. in the above mentioned decisions. In both cases, the deceased was a driver. It was held that the term 'accident' for the purpose of the law relating to compensation for personal injuries sustained by workman and employer's liability in that behalf includes any injury which is not designed by the workman himself and it is of no consequence that the injury was designed and intended by the person inflicting the same. But for the engagement of the deceased as a driver, he would not have been in the place where, at that time, he was killed. This Court took the view that, that would be sufficient to hold that the accident which had resulted in the death of the workman, has arisen out of the employment.