ORIENTAL INSURANCE CO LTD Vs. THANKAPPAN

JUDGEMENT

(1.) The writ petition is by the 1st respondent in the appeal filed by the insurer. The contentions raised in the appeal by the insurer is that admittedly by the parties, the death of the workman occurred due to drowning. This cannot have any casual connection with his employment as a conductor in the bus insured with the appellant. So the death did not occur during the course of employment and the respondents are not entitled to the compensation in terms of the Workmen's Compensation Act which shall have to be paid by the appellant on the strength of the insurance policy in force. In support of this contention the appellant relies on the decision of the apex court in E.S.I. Corporation v. Francis De Costa ( 1996 (2) KLT 799 ) and a decision of the Division Bench of this Court reported in Travancore Titanium Products Ltd. v. Jerro ( 2000 (1) KLT 643 ).

(2.) It is submitted by the counsel for the first respondent who has filed writ petition No. 15973/05, that the facts proved before the workmen compensation commissioner disclosed that the bus in which the deceased was a conductor had to start its trip at 3.30 a.m in the night. Therefore apart from himself the driver and cleaner were, for the purpose of employment, to be with the bus in the bus station during the night after the trip had terminated. Consequently they have to meet the human needs including bathing before they commence work on the next day by 3.30 a.m. It is for the purpose of bathing and meeting other humanly needs they had gone to a stream nearby and it was at that time the accident occurred resulting death of the workman who was working as a conductor of the bus. Therefore the accident did have direct and causal connection with the employment. In support of this contention the decision reported in Devshi Bhanji Khona v. Mary Burna & another ( 1985 KLT 78 ) is relied on.

(3.) We have to examine the question of law raised in this appeal whether the death was as a result of the accident occurred arising out of and during the course of employment as provided in S.3 of the Workmen's Compensation Act in order to cast liability on the employer to compensate for the death. The Supreme Court examining the meaning of employment injury as defined in Employees State Insurance Act, 1948 considered as follows: