EMPLOYEES' STATE INSURANCE Vs. GULABBAKSH MULLA

JUDGEMENT

(1.) IT was like any other day at the Chembur level crossing, The line man had pulled down the; gates (and literally so, because of the counter-poising heavy weight at the other end of the fulcrum) to allow the train to pass by unimpeded. On the other side of the two gates were queues of motorised vehicles, bullock-carts and pedestrians who were all biding their time along with the cattle for the train to pass by and the gates to open. One such vehicle belonged to Duke & Company which is engaged in the manufacture of aerated waters. The company had a fleet of specially designed trucks to transport crates of their bottled products to the retail outlets. To load and unload the crates the company had a complement of men and Gulab Baksh was one of such loaders perched on the crates of aerated waters.

(2.) AS there was no knowing as to when the train would pass by, Gulab Baksh who was bored by waiting decided to combat the ennui by having a smoke. His stock of bidis was exhausted and he wanted to cross over the railway line to buy a bundle of bidis from the wayside shop. The absence of foot bridge posed no problem to him as the flimsy fencing put up by the railways left enough space for a man to squeeze through between the wires. Gulam Baksh could have easily crossed the ten feet track of rails and metal to safety but due to some inexplicable reason did not make it and was knocked by an on coming train. He was hospitalised and the Surgeons thought it to be in his best interest to amputate his leg below the knee. Gulab Baksh filed an application under Section 46 of the Employees' State Insurance Act ('the Act') to claim 60% permanent disability and the Employees' Insurance Court at Bombay declared that the applicant Gulab Baksh had sustained an employment injury on October 27, 1974 and directed him to appear before the medical board for getting his disability and loss in his earning capacity assessed. The Employees' State Insurance Corporation appeals.

(3.) ACCORDING to Mr. Jaykar the entry of the deceased-driver into the petrol tank was for the benefit of the employer and is distinguishable from the facts of the present case where the employee was proceeding to purchase bidi for his own smoking pleasure.