SAMBHU SINGH Vs. KAMRUN NISSA

JUDGEMENT

(1.) CORRECTNESS of the order passed by the Deputy Labour Commissioner and Commissioner for Workmen's Compensation, Rourkela (in short 'the Commissioner') is questioned in this appeal under Section 30 of the Workmen's Compensation Act, 1923 (in short 'the Act').

(2.) FILTERING out the irrelevant, the factual position necessary for disposal of the appeal is as follows: According to the claimant, one Md. Suvan was employed by Sambhu Singh, Contractor (described hereinafter as 'the employer'), the present appellant, and he died on account of continuous strenuous work undertaken at the behest of the employer; the deceased was made to work in the premises of the Orissa Industries Limited, respondent No. 2, continuously for about more than 24 hours beginning from 29.9.1986 till 30.9.1986. Both the opposite parties before the Commissioner denied the allegation and took the plea that the death was a natural one, and not as claimed. Three issues were framed by the Commissioner and considering the evidence led it was held that death was occasioned due to the continuous, strenuous and exhausting work, and was in the course of employment of the deceased. Accepting the plea that the deceased was getting Rs. 360/ - per month compensation in the sum of Rs. 31,672.80 was awarded.

(3.) IN a case of this nature, what emerges for consideration is whether the accident is one which is covered under Section 3 of the Act. Section 3 of the Act relates to payment of compensation by an employer when personal injury is caused or death occasioned out of and in the course of employment. Significantly, 'accident' is not defined in the Act and therefore, a common parlance meaning has to be adopted. Generally, it means an unlocked for mishap or untoward event which is not expected or designed. It involves idea of something fortuitous and unexpected. Accident alone does not give rise to a cause of action for payment of compensation. Accident must not only occur during actual employment, but also must arise out of it. This is evident of the fact that expressions 'out of and 'in course of employment' are used conjunctively and not disjunctively. This aspect has been elaborately discussed by me in the case of Satyabadi Nayak v. Damei Khilla 1991 ACT 211 (Orissa) - As observed by the Privy Council in the case of Margaret Brooker v. Thomas Borthurick and Sons (Australasia) Ltd. AIR 1933 PC 225, the position which emerges seems to be clear that the accident must be connected with the employment, must arise out of and in course of employment. The Supreme Court had occasion to consider cases where a workman died a natural death of any disease which he was suffering, or while suffering from a particular disease, died of that disease as a result of wear and tear of his employment. It was held that in such cases, no liability would be fixed upon the employer; but, if the employment has a contributory cause or has accelerated the death or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable. [See Mackinnon Mackenzie and Co. (Private) Ltd. v. Ritta Fernandes 1969 ACJ 419 (SC). In the case of Imperial Tobacco Co. (India) Ltd. v. Salona Bibi 1956 (2) LLJ 35, it was held that if the stress and strain of the journey was responsible for causing or precipitating the workman's death, there was an accident arising out of and in the course of his employment. In the case of Laxmibai Atmaram v. Chairman and Trustees, Port Trust AIR 1954 Bombay 180, it was held that if the employment was a contributory factor to the acceleration of death, the employer was liable for compensation. Initial onus is on the claimant to show that she was entitled to a compensation but that initial onus is discharged if the claimant has led evidence to substantiate her claim. Thereafter onus shifts to the employer if it wants to avoid liability. This aspect has been elaborately dealt with by me in the case of Investigation & Security Service Pvt. Ltd. v. Snehalata Das Misc. Appeal No. 127 of 1989; disposed of on 5.3.1991.