UNION OF INDIA Vs. NOOR JAHAN

JUDGEMENT

(1.) This is an extraordinary case in which the facts are somewhat unusual and which do not fit into the straight-jacket or any fixed formula. It has to be larelly decided on first principle. The facts briefly are that the deceased Abdul Rashid was working as a gangman in the railway Department at Etawah ; on 8-8-71, while on duty, he was crushed by Motor Lorry No. 5003. The injuries were fatal and he succumbed to them. According to the applicants, the wages of the deceased at the time of his death were Rs. 165/- per month. An application for compensation under section 3 of the Workmen's Compensation Act, 1923 was made by his widow, Mst. Noor Jahan for herself and as the guardian of the other dependents of the deceased. The Union of India contested the application and in their objections stated that Abdul Rashid was only working as a substitute panelled-gangman ; that at the time he was crushed by the lorry, he was not on duty, that the duty hours finished at 6 p m. It was not disputed that he was a 'workman' within the meaning of the Workmen Compensation Act, that his wages were Rs. 165/- per months, and that the claimants were his dependents within the meaning of this Act.

(2.) The parties led evidence and on appraisal of the same, the Commissioner, Workmen's Compensation Etawah, by his order dated 12-4-76, allowed the claim and directed that Compensation to the tune of Rs. 7,000/- (Rupees seven thousand) together with interest at the rate of 6 per cent per annum from the date of accident, he paid to the claimants. It is this order which has been challenged in this appeal, preferred by the Union of India. In case the allegations made by the respondents are held to be established by the evidence, there would be no controversy with regard to the quantum of compensation. The question, therefore, which arises for consideration, is as to whether the accident arose out of and in the course of the employment of the deceased. Before referring to the question of law, which have been canvassed in this appeal, it is essential to carefully scrutinise the evidence led by the parties, disentangle the correct facts from the vertex of controversy and record clear cut findings on the broad factual aspects of the case. In short, the version on behalf of the claimants was that on 8-8-71, Abdu Rashid went to his place of duty, his duty hours being from 6 A.M. to 6 P.M with a break of three hours from 12 P.M. to 3 P.M. He worked at a particular site as a gangman in P.W.I Gang No. 4 between 11530/14 Km. and 11530/23 Km. till about 4.30 P.M. Thereafter, he was asked along with other gangman, working with him, to shift to another site for the purpose of cleaning the same and doing other odd jobs in connection with he 'Janmashtami celebrations. It is said that while he was being taken from the former site to the latter site in the company of other gangman, led by their Head known as the 'Mate' he was knocked down by a motor lorry and died as a result of the accident. On being informed about the same, his wife Mst. Noor Jahan reached the scene of accident, which had taken place on the public road towards the south of the railway track and the railway Malgodown. Obviously, the accident occurred before the deceased could reach the second site where he was required to do some work after he had been relieved from the first site at 4.30 P.M. The defence of the present appellant, however, was that the deceased finished his duty at 6 P.M. and he was returning home along with other gangman and on the way he met with an accident which did not occur in the course of nor arose out of the employment. It has to be seen as to how far the version of the claimants is substantiated by the evidence on record, either by direct or circumstantial evidence. It is atruism that in such accident cases, the Court has often to fall back upon circumstantial evidence. As observed by Viscount Dunedin in Machkinon v. Miller 1909 S.C. page 373.,1909 S.C. page 373. "each case must be dealt with and decided on its own circumstances and inferences may be drawn from circumstances just as much as results may be arrived at from direct testimony."

(3.) The, first important feature of the defence evidence which has struck me in this case is a calculated attempt on the part of the witnesses to either suppress or soft-pedal the allegations about the 'Janmasthami' celebrations. If the" defence witnesses had been straight-forward and no such attempt had been made to conceal the full facts, their testimony would have inspired confidence. It is surprising that Mauzam Khan, D. W. 1 the Mate of the gang in which Abdul Rashid" was working, pretended complete ignorance about the 'Janmasthami' celebrations, referred to by the witnesses for the claimants. The case was clearly put to him in cross-examination, but he stated that he did not know if any special train was to go during that period or any arrangement had to be made for cleaning the area at the time of 'Janamasthami' and whether the accident had taken place before or after the 'Janamasthami' Likewise, D. W. 5 Ravindra Prasad Agarwal, permanent Way Inspector, Etawah, deposed in the same strain and said that he did not remember whether the 'Janamasthami' function was held prior to the occurrence or after it. I am inclined to agree with the appraisal of evidence made by the Commissioner, Workman Compensation, Etawah that these witnesses, being employees of the Railway Department, were deliberately evasive and were reluctant to deliver themselves of the true and complete facts which might have been favourable to the claimants and prejudicial to the employer. There is cogent evidence led on behalf of the claimants to prove that the workman was relieved from his duty at the first site at 4.30 P. M. and therefter he was directed to resume duty at the next site. Sita Ram A W. 1 is a Rikshaw - puller who passed that way, plying his rickshaw. He is an absolutely dis -interested person and there is no reason why his statement should not be believed. It was in his rickshaw that the various tolls and impleaments, carried by the gangmen who accompanied the deceased, were taken to the residence of the Engineer where they were left, and thereafter, he went to the residence of the deceased in Naurangabad, and informed the widow of Abdul Rashid about the accident. It has come clearly in his statement that his rickshaw was engaged for that purpose at 5 or quarter to five P. M. at the place of accident, where he had reached at that time. This shows that the deceased and the other gangmen of the same group had been relieved of their duties at the first site prior to this. Another important witness in this connection is Kallu, A. W. 2,- who carries on the work of cycle repairing, etc. Near the railway crossing and the various gangemen employed in the Railway are his customers and come to him frequently for repairs, etc. and he was personally acquainted with them, including Abdul Rashid and his other companions. He disposed that the gangmen used to finish their work at 6 P. M. but on the day of the accident they had finished it at half past 4 P. M. He had met the mate, namely, Mauzam Khan that day and learnt from him that the work had finished early on the first site in order to enable the gangmen to perform duty at another site on account of the special train which had to be taken out and the arrangements which had to be made in connection with the 'Janamashtami' celebration by the railway employees. This witness personally knew Abdul Rashid, and he appears to be a truthful witness, and he deposed facts which were within his personal knowledge. He stated that although Abdul Rashid himself did not come to him at about 4.30 P. M. on that day, yet the other colleagues of the gang actually came to him at that time for repairs of their cycles. One circumstance which is very imporant, and to which both he and Sitaram testified, was that although these gangmen had been relieved of their duties from the first site, they still carried their tools with them. This would j naturally suggest that the gangmen were required to do some other work over and above the one they had already completed on the first site. Another clue in the narrative of events finds support from the statement of R. P. Agarwal, D. W. 5, permanent Way Inspector to whom I have already referred. He stated that the tool box (the place where tools are stored and returned after finishing duty) was situate quite close to the first site where the gangmen were working (on the eastern side) and the workmen working at that site, used to deposit their tools at that place. The witness added that there was another tool box situate on the western site near the house of the Railway Engineer and the workmen used to deposit their tools at that tool box when they were posted to perform their duty on the western side. The statement of Sitaram A. W. 1, the rickshaw puller, is to the effect that he had carried the tools of the gangmen, placed in his rickshaw. He actually specified the tools as 'Panji' and 'Gainti' and said that he had left them at the Engineer's house. Coupled with these is the very cardinal circumstances in this case, namely, that the gangmen after completing their duty at the first site, had adopted a route which was not the usual route for returning home. This is a fact which has been admitted even by the Mate. It is wholly inexplicable as to why these gangmen adopted a longer and unusual route if they were returning home after completing their usual duty. Obviously they would also not be carrying their tools along with them, if they had completely finished their duty and there would be no tools left to be deposited at the other tool box on the western side, near the Engineer's house.