RAVURI KOTAYYA Vs. DASARI NAGAVARADHANAMMA

JUDGEMENT

(1.) This appeal is directed against the judgement aand order of the Commissioner appointed under the Workmens Compensation Act, awarding compensation to the 1st Compensation Act, awarding compensation to the 1st respondent under the said Act, on account of the death of her husband Lakshiminarayana, hereinafter referred to as the deceased. ( The deceased was in the employment of the appellant who owned a lorry bearing registration No. ADG 993, as a motor driver, to perform the duties of driving the lorry in question. On 10-11-1956, this lorry of the appellant ADG 993 was carrying tins containing dalda from Kurnool to Guntur. The deceased had picked up the load under the directions of the appellant at the dalda factory in Kurnool and was carrying the same to Guntur in accordance with his masters order. The road from Kurnool to Guntur crosses the river Musi, and a causeway had apparently been built to enable the traffic to pass from one side of the river Musi was in floods water was running at some considerable height over the causeway with the result that there was a suspension of traffic naturally resulting in the accumulation of lorries, which had been held up, on the Kurnool side of the river. There were some twenty lorries that had been so held up. These lorries had waited in the nearby village of Podili for a day or so in the hope of the flood water subsiding and thereafter,on the waters of the river receding, made their way to the banks of the Musi river. It was found that a two feet high water was still flowing over the causeway. Apparently, some consultation had been held among the drivers and a decision was taken that the lorries should be pushed across the river along the causeway, as, on account of the flow of water, it may not be possible to move the lorries across, on their own power. Accordingly, one after another, the lorries were pushed by the available drivers and cleaners safely to the other side of the river. The lorry ADG 993 , which was owned by the appellant and which was driven by the deceased, was the second of the lorries to thus reach the opposite bank in safety. Having thus managed to get his own lorry across the river to the other bank, the deceased, apparently,in accordance with the decision taken by all the drivers, himself came back to the lorries remaining behind and began giving a helping hand to those lorries to reach the opposite bank. It would appear that as many as 10 lorries had thus been pushed to the opposite bank, safely. It was when the 11th lorry was being pushed by the deceased along with the other drivers and cleaners, that the deceased appears to have slipped and fallen into the water with the result that the back wheels of the lorry nearest to him passed over him and the deceased was thereafter drawn away by the flood current into the waters of the river. Some of the drivers who were thus engaged in pushing the lorry, noticed the deceased in the waters, and immediately ran to his rescue and pulled him on to the bank, when the deceased complained to them that he had been run over by the back wheels of the lorry which he was pushing and that he should be taken to a hospital for immediate attention. The evidence indicates that the man was in distress and suffering from pain. Thereupon, one of the drivers, who had been examined in the case as P. W. 2, took the deceased in his own lorry viz., ADG 993 to the hospital in Ongole which apparently was the nearest place. On medical advice given at the hospital, the deceased was immediately taken away by the lorry to Guntur hospital for treatment, but unfortunately he appears to have expired on the way. An inquest was held on the dead body and it was opined by the panchayatdars that the deceased died on account of an accident in which the wheels of the lorry ADG 1217 which, according to the evidence, was the lorry that was being pushed by the deceased at the time of the occurrence, passed over him.

(2.) It is contended by Mr. T. V. Sarma, the learned counsel for the appellant, that there was no proof in the case of any accident at all, or that that accident resulted in the death of the deceased workman. He further contended that even if there was an accident and the death of the deceased was the result of the accident, the accident did not arise out of and in the course of the deceaseds employment, as he was not employed to push the lorries of other persons, and as his employment was only to drive the lorry of the appellant entrusted to him, and also because the appellant countermanded specifically, the deceased, from taking the lorry across rivers in floods.

(3.) On the question whether there was an accident at all, there is, in my opinion, abundant evidence. The last time the deceased was seen functioning was when he was pushing the lorry ADG 1217. He was pushing on the left side of the lorry and when he was seen next, he was found in the water almost immediately thereafter, and when he was picked up, he complained of pain and prayed for being taken to the hospital for treatment, at the same time stating that the back wheels of the lorry had run over him. This evidence regarding the statement made by the deceased is obviously admissible under S. 32(1) of the Indian Evidence Act as a dying declaration. No satisfactory reasons have been shown in the evidence or in the arguments as to why this statement of the deceased should not be accepted as true, particularly when the deceased had not time to think of anything, that he mentioned this immediately he was picked up and when he was in extreme pain, and that he had no motive to speak falsehood about the appellant. Further, it is not understood how the statement made by the deceased would, in the knowledge of the deceased, be either advantageous to him or prejudicial to his employer. There being no motive suggested or shown as to why the deceased, in those circumstances, speak to something which is not the truth, I have no hesitation whatsoever in accepting his statement as truthful and rely on it. Further, the fact that he made that statement is corroborated by the evidence of other witnesses who noticed him suffering from pain and who were requested by him to take him to the hospital: and the fact that he was actually taken to the Ongole hospital. The doctors there, apparently felt that he needed better treatment , which could be got at Guntur hospital, and accordingly an attempt was made to take him there. Hence, I experience no difficulty whatsoever in coming to the conclusion that the deceased died as a result of an accident and that the accident was caused by the back wheels of the lorry which he was pushing passing over him. It is true that the exact circumstances in which the accident has happened or the exact manner in which it had happened has not been established. The reason is obvious. Everyone is interested in pushing the lorry and nobody might have noticed what was actually happening to the deceased. If the deceased had slipped and fallen in front of the back wheels which were in motion, in the first place, he would have fallen in the river water which was flowing over the causeway at a height of two feet, and in the second place, nobody could have noticed the tyres passing over him on account of the flowing of the water, and it is immaterial in a case of this kind whether there is such evidence or not. Suffice it to say that the accident had occurred in the circumstances disclosed by the evidence for the petitioner in the case.